Ethics Opinion Clarifies When Lawyers May Communicate With Represented Persons

Lawyers are often confused about the applicability and scope of the no-contact provisions of Rule 4.2. That rule provides that a “lawyer in representing a client shall not communicate about the subject matter of the representation” with a person who has a lawyer unless “the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order.” See La. Rules of Prof’l Conduct r. 4.2(a). Common questions that lawyers have about the rule include the following: May I talk with a represented person who is seeking to change counsel or to get a second opinion? May I communicate with a former employee of a represented company? May I instruct my client to talk to the opposing party directly?

On January 9, 2020, the Supreme Court of Virginia approved a formal ethics opinion addressing these and similar questions. See Legal Ethics Op. 1890 (Va. Jan. 9, 2020) (“Communications with Represented Persons (Compendium Opinion)”). What is particularly refreshing about the opinion is that the advice it provides is readable, simple, succinct, and straightforward.1 Here is the advice straight from the opinion:

  1. The rule applies even if the represented person initiates or consents to an ex parte communication.
  2. The rule applies only if the communication is about the subject of the representation in the same matter.
  3. The rule applies only if the lawyer actually knows that the person is represented by counsel.
  4. The rule applies even if the communicating lawyer is self-represented.2
  5. Represented persons may communicate directly with each other regarding the subject of the representation, but the lawyer may not use the client to circumvent Rule 4.2.
  6. A lawyer may not use an investigator or third party to communicate directly with a represented person.
  7. Government lawyers involved in criminal and certain civil investigations may be “authorized by law” to have ex parte investigative contacts with represented persons. 3
  8. Ex parte communications are permitted with employees of a represented organization unless the employee is in the “control group” or is the “alter ego” of
    the represented organization.4
  9. The rule does not apply to communications with former employees of a represented organization.
  10. The fact that an organization has in house or general counsel does not prohibit another lawyer from communicating directly with constituents of the organization, and the fact that an organization has outside counsel in a particular matter does not prohibit another lawyer from communicating directly with in-house counsel for the organization.
  11. Plaintiff’s counsel generally may communicate directly with an insurance company’s employee/adjuster after the insurance company has assigned the case to defense counsel.
  12. A lawyer may communicate directly with a represented person if that person is seeking a “second opinion” or replacement counsel.
  13. The rule permits communications that are “authorized by law.”
  14. A lawyer’s inability to communicate with an uncooperative opposing counsel or reasonable belief that opposing counsel has withheld or failed to communicate settlement offers is not a basis for direct communication with a represented adversary.
  1. The opinon also succinctly summarizes the purpose of the rule as follows: “Authorities recognize that the “no-contact rule” contributes to the proper functioning of the legal system by (1) preserving the integrity of the attorney-client relationship; (2) protecting the client from the uncounseled disclosure of privileged or other damaging information relating to the representation; (3) facilitating the settlement of disputes by channeling them through dispassionate experts; (4) maintaining a lawyer’s ability to monitor the case and effectively represent the client; and (5) providing parties with the rule that most would choose to follow anyway.”
  2. I do not agree with this advice. The opinion cites Virginia precedents in support of this proposition. However, when a lawyer is a party to a matter, the lawyer is not acting in a representative capacity and thus, is not “representing a client” under this rule. In short, he is not representing himself; he is himself.
  3. The opinion notes that “the courts have long recognized the legitimacy of undercover operations, even when they involve the investigation of individuals who keep an attorney on retainer.” In further support of the advice, the opinion quotes Comment 1 to ABA Model Rule 5.3: “The Rule is not intended to preclude traditionally permissible activity such as misrepresentation by a nonlawyer of one’s role in a law enforcement investigation or a housing discrimination “test.”
  4. Note that Louisiana Rule 4.2(b) expressly addresses this issue.
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