II. Applicable Rules of Professional Conduct

II. Applicable Rules of Professional Conduct

A. Model Rule 4.2

Any discussion of lawyers' communications with persons represented by counsel must begin with Model Rule of Professional Conduct 4.2,¹ commonly referred to as the "anti-contact rule" or "no-contact rule." Actually, "anti-contact rule" or "no-contact rule" is a misnomer because Model Rule 4.2 clearly does not bar all ex parte communications with a represented person.² To use an obvious example, the rule does not prohibit a lawyer from serving process on a person the lawyer knows to be represented by counsel. After all, rules of civil procedure contemplate service of original suit papers on a defendant rather than its counsel. Nonetheless, the rule places important limits on lawyers who, in representing a client, wish to communicate with other persons who the lawyer knows are represented in the matter. Model Rule 4.2 provides:

In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order.³

In any dispute concerning the applicability of Rule 4.2, courts, disciplinary authorities, and lawyers must recall the rule's general purposes, which are to "preserve the positions of the parties in an adversarial system and thereby to maintain protections obtained by employing counsel and prevent disruption of the attorney-client relationship,"⁴ and to protect a represented person from being taken advantage of by an opposing lawyer.⁵ The rule is not designed to inhibit the flow of prejudicial or potentially damaging information.⁶

1. The Elements of Model Rule 4.2

At the outset, Model Rule 4.2 plainly requires that a lawyer be representing a client for an ex parte communication to be improper.⁷ This requirement is easily established in most cases. There is occasional debate over whether a lawyer acting pro se is "representing a client" for purposes of the rule or is merely a litigant. The majority view holds that a lawyer appearing pro se is representing a client.⁸ This is also the better-reasoned view. After all, Model Rule 4.2 is intended to protect represented persons from overreaching by lawyers and against harm that might result from ill-advised statements that their lawyers' presence would have prevented, and a lawyer appearing pro se presents exactly these threats. A lawyer appearing pro se is not simply another litigant. Of course, because Rule 4.2 governs lawyers' conduct, its prohibition on ex parte communications does not apply to a pro se litigant who is not a lawyer.⁹

Model Rule 4.2 applies only where the person with whom a lawyer communicates ex parte is represented in the matter.¹⁰ As for the essential requirement of knowing whether a person is represented by another lawyer in a matter, that is plain where the other lawyer has entered an appearance, filed a pleading, called to announce her representation, or identified herself in an e-mail message or letter. Such clarity is not required to find a violation, however, because a lawyer's knowledge can be inferred from circumstances. Lawyers cannot avoid acquiring knowledge by turning a blind eye to facts or circumstances clearly indicating that a person is represented by counsel in the matter.¹¹ Still, the Rule 4.2 knowledge requirement is unquestionably one of actual knowledge.¹²

Lawyers need not speculate about a person's representation, nor does suspicion about a person's representation determine lawyers' duties. For example, a person's statement that she should speak with someone else—such as a supervisor—before speaking with a lawyer does not support the conclusion that the lawyer knew of the person's representation.¹³ The mere fact that a person copies a lawyer on a letter does not establish that the person is represented in a matter.¹⁴ Nor does a statement from another lawyer that he or she will be assisting a party without entering a formal appearance necessarily indicate representation for Rule 4.2 purposes.¹⁵ If a lawyer advises a person that he has a right to counsel or may want to retain or consult with counsel and the person fails to mention in response that he is represented, it undermines any claim that the lawyer knew the person was represented.¹⁶ In sum, the fact that a lawyer should have known that a person was represented in a matter will not support a Rule 4.2 violation.¹⁷

There is authority for the proposition that lawyers are not required to ask whether someone is represented in a matter before speaking with the person,¹⁸ although some courts expect lawyers to do so,¹⁹ and it is often wise to so inquire.²⁰ A lawyer generally should not attempt ex parte communication where a person's lawyer has moved to withdraw but the court has not yet ruled on the motion; until the court grants the motion, it is best to treat the person as being represented.²¹

As should be obvious, Model Rule 4.2 applies to ex parte communications by lawyers and their agents; it does not prevent parties from communicating with one another outside their lawyers' presence.²² For example, two businesspeople who are locked in a dispute may well decide that they can settle the matter through personal negotiations without their lawyers present. Alternatively, parties to a marital dissolution proceeding may decide that they can resolve some disputed issues on their own. Lawyers may advise clients concerning communications with represented persons that the client is legally entitled to make.²³ Lawyers may prepare outlines, scripts, or talking points for clients who intend to communicate with a represented person on their own,²⁴ as long as the lawyer does not encourage or position the client to seek confidential information from the person or otherwise overreach,²⁵ or instruct or prepare the client to make misrepresentations. The lawyer's appropriate assistance must be permitted because the lawyer's duty of care owed to the client continues even though the client is acting on her own initiative. And, a lawyer's obligations to a client generally include guiding—or at least attempting to guide—the client's aim so that he does not shoot himself squarely in the foot. If, for example, a client has unhelpful personal tendencies or an unduly skewed perspective on a case, outlining or scripting the communication reduces the risk that the client's actions will do more harm than good. Moreover, to reason otherwise would restrict the client's autonomy and would grant an advantage to the represented person, who may have been coached by his counsel about how to respond in this situation.²⁶ What lawyers clearly may not do, however, is attempt to circumvent Rule 4.2 by directing a client or anyone else to communicate with a represented person as a proxy for the lawyer.²⁷ A lawyer cannot avoid Rule 4.2 by directing another person—including a client—to do that which the lawyer cannot do herself.²⁸ As long as the lawyer does not initiate or orchestrate the communication, however, Model Rule 4.2 should be immaterial.²⁹

2. The Existence and Scope of a Matter

Questions occasionally surface about the existence or scope of a "matter" within the meaning of Model Rule 4.2.³⁰ The determination of the existence or scope of a matter can be crucial because Model Rule 4.2 does not prohibit communications with a represented person, or with a represented person's agent or employee, outside the scope of the representation.³¹

Model Rule 4.2 clearly applies to lawyers' ex parte communications with represented persons before a lawsuit is actually filed,³² but at what point a matter exists sufficient for the rule to attach can be unclear. This is most common where litigation is contemplated but has not been initiated, and lawyers for the putative parties are gathering information in preparation for it, or where a person is involved in several enterprises or projects with legal aspects. In the pre-litigation phase, it has been stated that Rule 4.2 is limited to "those cases in which the attorney and represented parties have an adverse or 'ripening adverse' relationship."³³ Unfortunately, this is not an area that lends itself to uniform rules. Whether a matter exists, what matters are within a lawyer's representation, and the scope and contours of matters are all determinations that depend on the circumstances.³⁴

On the whole, courts more often define a matter from a case or representation perspective than from a fact perspective, as demonstrated in People v. Santiago?³⁵ In Santiago, the Rule 4.2 question was whether communications by prosecutors investigating potential criminal child endangerment charges against Evelyn Santiago were prohibited by Rule 4.2 because Santiago was represented by appointed counsel in parallel juvenile court proceedings seeking to have her children made wards of the state for their protection. Because it was undisputed that the lawyer representing Santiago in the juvenile court matter had not been engaged to represent her in the criminal investigation, the Illinois Supreme Court concluded that Rule 4.2 was not violated despite the overlapping case facts.³⁶ The only "matter" in which Santiago was represented by counsel was the juvenile court case.³⁷

3. Permissible Communications When Representation Is Known

There certainly are times that a lawyer may communicate ex parte with a person who the lawyer knows to be represented in a matter without violating Rule 4.2.³⁸ Most obviously, Model Rule 4.2 permits ex parte communications with the consent of the lawyer for the represented person. Of course, a person may be represented in a matter by more than one lawyer. For example, a party may have local counsel and lead or national counsel. Employees may have their own counsel and may also be represented by lawyers for their employers. An insured may have personal counsel in addition to defense counsel appointed by the...