(This article appeared in Journal 16,3, September 2011)
You can't touch this
Look man you can't touch this
You'll probably get hyped boy
'Cause you know you can't touch this
Ring the bell school's back in
(Oh-oh-oh oh-oh)
You can’t touch this
—MC Hammer
Like MC Hammer’s legendary dance moves, there are certain persons or entities that cannot be “touched” by lawyers when they are representing a client. Rule 4.2, commonly known as the “anti-contact” rule, generally prohibits a lawyer who is representing a client in a matter from communicating about the subject matter of the representation with a person the lawyer knows is represented in the same matter unless the represented person’s lawyer consents.
(Break it down.) First, the rule only applies if the lawyer knows that the person is represented. The lawyer has to have “actual knowledge” of the fact of representation. However, knowledge may be inferred from the circumstances and the lawyer cannot ignore facts suggesting that the person is represented. The lawyer does not have an affirmative duty to ask whether the person is actually represented. However, the better practice is to ask to avoid possibly violating the rule. What if the opposing party tells you that he has fired his lawyer? If retained counsel has entered an appearance in a litigated matter, you may not communicate with the person until the court has granted the opposing lawyer’s motion to withdraw. If no motion is forthcoming, you may make a motion to have the lawyer for the opposing party disqualified by the court (because he has been fired) in order to negotiate directly with the (now) unrepresented opposing party.
Second, the rule only applies if the communicating lawyer is also representing a client in the matter. Therefore, Rule 4.2 does not preclude communication with a represented person who is seeking a second opinion from an independent lawyer. Comment [2] to Rule 4.2 states that a lawyer from whom such a second opinion is sought “should, but is not required to, inform the first lawyer of his or her participation and advice.” However, if the person asks you not to disclose the request for a second opinion, this becomes confidential information that you may not disclose.
Third, the rule only prohibits communications “about the subject of the representation.” The rule does not apply if the lawyer is communicating with a represented person about a matter outside the subject matter of the representation.
Fourth, the rule only applies if the person has legal representation in “the same matter.” This element of the rule is perhaps the most difficult to understand and apply. Clearly, if a person is represented by a domestic lawyer in a divorce case, and that person is also proceeding pro se in a breach of contract action against his landlord, the landlord’s lawyer does not need the consent of the domestic lawyer to speak to the person about the breach of contract case. The issue becomes murky if one set of facts gives rise to more than one action and a party is represented in one of the actions but not the others. In this situation, the lawyer should consider the public policies advanced by Rule 4.2: preserving the client-lawyer relationship; preventing lawyer overreaching; and reducing the likelihood that privileged or confidential information will be disclosed. Where the answer is still unclear, the lawyer should err on the side of obtaining consent.
(Oh-oh oh oh oh-oh-oh.) What if the represented “person” is actually an organization? There is a distinction between communications with management and “blue collar” employees and between current and former employees. Rule 4.2’s protections extend only to those employees who should be considered the lawyer's clients because of the authority they have within the organization or their degree of involvement in the legal representation. A lawyer generally may interview rank-and-file employees without the knowledge or consent of the organization’s lawyer. RPC 67.
There are four situations where a current employee is considered off-limits: (1) the employee supervises, directs, or consults with the organization’s lawyer concerning the legal matter; (2) the employee has authority to obligate the organization with respect to the matter; (3) the employee’s act or omission in connection with the matter may be imputed to the organization; or (4) the employee participated substantially in the legal representation of the organization.
There is a different standard for former employees. Rule 4.2 generally permits ex partecommunications with former employees. This is true even though the former employee’s acts or omissions may be the subject of the representation. A lawyer may communicate directly with a former employee of a represented organization, unless the former employee participated substantially in the legal representation of the matter. 97 FEO 2. According to our ethics opinions, if a former employee was privy to privileged communications with the company’s lawyer as to the strategy and objectives of the representation, the management of the case, or other matters pertinent to the representation, the former employee is off-limits and consent of the represented organization’s counsel is required. 97 FEO 2.
If a former employee is not considered off-limits by the standard above, the lawyer should determine whether the former employee has separate counsel. If the former employee does not have counsel, the lawyer should follow the requirements for communicating with an unrepresented party that are set out in Rule 4.3. In addition, when communicating with former employees of a party-opponent, the lawyer may not solicit information that is reasonably known or which reasonably should be known to the lawyer to be protected from disclosure by statute or by an established evidentiary privilege. See Rule 4.4
(Oh-oh oh oh oh-oh-oh.) What if the represented organization is a government entity? Our ethics opinions provide that Rule 4.2 only applies to communications with a government employee related to a specific claim of a client. 2005 FEO 5. Routine communications on general policy issues or administrative matters do not require consent. A lawyer representing a party in a controversy with the government may communicate directly with elected officials who have authority to take action in the matter. The lawyer must, however, give government counsel reasonable advance notice. Rule 4.2(b) permits communications with a represented elected official under the following circumstances: (1) in writing, if copied to the opposing lawyer; (2) orally, upon adequate notice to the opposing counsel; or (3) in the course of official proceedings.
You can touch this. There are some scenarios where Rule 4.2 does not prohibit communication. For instance, the rule does not prohibit represented parties from communicating directly with each other. And the rule does not prohibit a lawyer from encouraging his client to communicate with the opposing party “in a good faith attempt to resolve the controversy.” Rule 4.2, Cmt. [4].But see (in this publication) Proposed 2011 FEO 11, Communication with Represented Party by Lawyer Who Is the Opposing Party. Rule 4.2 also allows communications with represented parties when those communications are “authorized by law or court order.” See, e.g., RPC 218 and (in this publication) Proposed 2011 FEO 15, Communication with Adverse Party to Request Public Records. As noted above, direct communications with elected governmental officials are permitted under certain conditions.
Now back to “Hammer Time.”
Wave your hands in the air
Bust through the moves run your fingers through your hair
This is it for a winner
Dance to this and you're gonna get thinner
Move slide your rump
Just for a minute let's all do the bump
Suzanne Lever is assistant ethics counsel for the North Carolina State Bar.