Rule 4.2—Communication With a Person Represented By Counsel
I. BACKGROUND
A. Purpose
The purpose of Rule 4.2 is well stated in Rule 4.2 cmt. 1: "This rule contributes to the proper functioning of the legal system by protecting a person who has chosen to be represented by a lawyer in a matter against possible overreaching by other lawyers who are participating in the matter, interference by those lawyers with the client-lawyer relationship and the uncounselled disclosure of information relating to the representation." These purposes are discussed, with citations to authority, in State v. Miller, 600 N.W.2d 457, 463 (Minn. 1999).
B. More Purposes
From lawyers' perspectives, Rule 4.2 also prevents intrusion, even by allies, and poaching by competitors. A client may, however, wish to consult with other counsel, whether for a second opinion, or shadow counsel services, or as possible substitute counsel. Rule 4.2 does not forbid counsel to provide such consultations.
C. Illustration
A good example of why Rule 4.2 is needed is found in the subject of an admonition issued in 1992. "A lawyer represented the father in a child support proceeding. The mother was represented by the county attorney's office. Prior to a review hearing regarding a referee's order reducing the father's child support obligation, the father had pressured the mother into stipulating to the reduced child support. The mother then met with the father's attorney, signed a waiver of counsel and the stipulation. The lawyer did not contact the county attorney prior to the meeting or advise the county attorney of the agreement. The lawyer's conduct violated Rule 4.2. When an individual is represented by counsel, Rule 4.2 requires the consent of the lawyer, not just of the affected client, in order to prevent just the type of pressure which was exerted upon the mother in this case." Marcia A. Johnson, Summary of Admonitions, BENCH & B. OF MINN., Feb. 1993, at 11, 13.
D. Resolved Issues
Several Rule 4.2 issues that were the subject of extensive dispute and commentary have been resolved, most often by amendment to the Rule or its comments. A minority once contended Rule 4.2 applied only to a "party," in litigation, but a Rule amendment substituted "person" for "party." Several controversies related to which individual persons were covered by Rule 4.2 when the represented person was an organization. For example, prior comments to Rule 4.2 caused disputes over who had "managerial responsibility" and who could make "an admission on the part of the organization." Minn. R. Prof. Conduct 4.2 cmt. (2004). These categories were deleted from the comments to Rule 4.2 in 2005, thereby ending the disputes. The amended comments also make clear that former employees are not covered by Rule 4.2. In general, as explained below, current Rule 4.2 cmt. 7 states that few persons within an organization are covered by Rule 4.2. The Department of Justice (DOJ) claimed, beginning in 1989, in the "Thornburgh Memorandum," that its attorneys were not subject to Rule 4.2. Federal legislation in 1998 clarified that DOJ lawyers are covered. Similar claims by state prosecutors were largely rejected by the Minnesota Supreme Court, in cases cited below.
E. Caution
Because so many of the Rule 4.2 issues that were once hotly contested have been resolved, by amendment or case law, lawyers should not cite older authorities, especially those before 2005, except with great caution.
F. Remaining Issues
Because represented persons are not prohibited from communicating directly with each other, there is difficulty drawing the line between permissible advice to clients regarding the communications and "scripting" (impermissible because, under Rule 8.4(a), a lawyer may not do through another what the lawyer may not do herself). An older controversy—whether lawyers may encourage clients to communicate directly—has been resolved with permission to encourage. In Minnesota, a pro se lawyer has sometimes been regarded as "representing a client" (himself or herself) and therefore subject to the Rule's prohibition, but the issue has been so inconsistently handled that the Office of Lawyers Professional Responsibility (OLPR) will not enforce Rule 4.2 against lawyers appearing pro se.
G. ABA Formal Opinion 11-461 (2011)
This opinion, titled, "Advising Clients Regarding Direct Contacts with Represented Persons," is discussed below. Opinion 461 creates new issues, because it extends new permissions to lawyers to provide such "substantial assistance" to clients in communicating directly with represented adverse parties. Id. at 5. Opinion 461 expressly states that it "explores the limits" of how far lawyers may go in providing such assistance. Id. at 1.
H. Protection Does Not Create Client Status
When a lawyer (L) represents an organization, L does not thereby represent the employees and other "constituents" of the organization. Rule 1.13(a). Although certain persons related to the organization are identified with the organization for Rule 4.2 purposes, those persons do not thereby become individual clients of L. Rule 4.2 cmt. 7. Put differently, looked at from the outside, those persons described by comment 7 are identified with the organization, for Rule 4.2 purposes, but looked at from the inside, those persons are not identified with the organization for L's attorney-client relationship purposes. The distinction between Rule 4.2 protection and client status also applies in the context of a certified class.
I. Comments
The comments to Rule 4.2 are exceptionally important. The comments became more detailed and important after amendments in 2002 (Model Rule) and 2005 (Minnesota). Most importantly, Rule 4.2 comments have been taken by courts—including the Minnesota Supreme Court which has declined to adopt the comments as such—and by OLPR, as identifying the persons within a represented organization who are covered by Rule 4.2. The newer comments address other important controversies, such as how far a lawyer may script or advise a client as to direct communications with a represented party.
J. Lineage
The lineage of Rule 4.2 has been traced to an 1836 treatise, which declared, "I will never enter into any conversation with my opponent's client, relative to his claim or defence, except with the consent, and in the presence of his counsel." State v. Miller, 600 N.W.2d 457, 463 n.5 (Minn. 1999) (citing 2 DAVID HOFFMAN, A COURSE OF LEGAL STUDY ADDRESSED TO STUDENTS AND THE PROFESSION GENERALLY 771 (2d ed. William S. Hein & Co., Inc. 1968) (1836) (further citations omitted). Ancestors of Rule 4.2 are also found in the ABA Canons of Ethics (1908) and Code of Professional Responsibility DR 7-104(A)(1).
K. Hot Topic
"As evidenced by its frequent appearance in this column, as demonstrated by how often it is the subject of requests for advisory opinions, and as illustrated by its being the source of attorney discipline, the question of communication with represented parties continues to be a hot topic for Minnesota lawyers." Craig D. Klausing, Communication with Represented Parties, MINN. LAW., Nov. 5, 2001, at 2, 2. The same could have been said at any time after approximately 1985. Almost all Rule 4.2 disciplines are private admonitions and the annual Summary of Admonitions by the OLPR Director almost always includes a Rule 4.2 case. A leading commentary is apparently unfamiliar with the volume of private disciplines for Rule 4.2 violations: "[T]he most common setting for application of the no-contact rule has been in litigation, not in discipline proceedings." 2 GEOFFREY C. HAZARD, JR., W. WILLIAM HODES & PETER R. JARVIS, THE LAW OF LAWYERING § 38.2 (3d ed. 2001) (footnote omitted).
L. Common Applications
An OLPR article gives a good example of a lawyer violating Rule 4.2 in several ways. Candace M. Hojan, Ethical Issues in Dealing With a Represented Party, MINN. LAW., May 31, 1999, at 2. Rule 4.2 has often been a predicate, in civil and criminal cases, for motions for exclusion of evidence and, less often, for other sanctions. Rule 4.2 has also often been the basis for private discipline, but has been a primary basis for public discipline in only a handful of cases.
M. References
"Communicating lawyer" refers to the lawyer who is actually or allegedly communicating with a person (P) protected by Rule 4.2. "Representing lawyer" refers to the lawyer who represents P or P's organization. The dates of amendments to Rule 4.2 and its comments—2002 for the Model Rule, 2005 for the Minnesota Rule—will not be repeated below.
II. RELATED AUTHORITIES
A. Limiting Access
Rule 4.2 is naturally grouped with Rules 3.4(f) and 4.4, which deal with limits on access to witnesses and information.
B. Limiting Overreaching—Rules 4.3, 1.13
Rule 4.2 is also associated with Rules 4.3 and 1.13(e)-(f) (equivalent to Model Rule 1.13(f)-(g)). These rules limit overreaching by lawyers. It is especially important that lawyer recognize that if communication with a person is not subject to Rule 4.2, the communication is almost always subject to Rule 4.3.
C. A Small Gap?
"In the event the person with whom the lawyer communicates is not known to be represented by counsel in the matter, the lawyer's communications are subject to Rule 4.3." Rule 4.2 cmt. 9. Is this statement always true? If a person is represented by counsel, but the communicating lawyer does not know of the representation, is the communication with the person subject to Rule 4.3? Rule 4.3 depends on a fact - whether the person is represented. Rule 4.2 depends on knowledge of the same fact. There is a small gap, at least analytically, where neither Rule applies because neither factual predicate exists.
D. Investigative Ethics
If the rules governing deceit—4.1 and 8.4(c) especially—are added to the Rules immediately above, together they cover most topics of investigative ethics, that is investigations not conducted under the Rules of Civil Procedure.
E. Restatement
Restatement § 99...
