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Parameters of the Witness No Contact Rule
As Aristotle recognized in approximately 350 BCE, “all men by nature desire to know.” The passage of time has not diminished this pursuit of knowledge, particularly by attorneys zealously representing clients. Attorneys recognize that obtaining facts efficiently and accurately is frequently outcome determinative. Yet, there are ethical limitations on how attorneys may obtain information that, if transgressed, can render the evidence inadmissible and subject the attorney to discipline and other adverse consequences. This article articulates some of the common issues that a lawyer should consider under Model Rule 4.2, but the manner in which Model Rule 4.2 is applied across different jurisdictions may vary. See Ellen J. Messing and James S. Weliky, Contacting Employees of an Adverse Corporate Party: A Plaintiff's Attorney's View, 2008 A.L.I.'A.B.A. Continuing Legal Educ., Advanced Emp. L. & Litig. 1527. Before engaging in potentially restricted communications, it is recommended that you familiarize yourself with how the ethics committees and courts have applied Model Rule 4.2 in your local jurisdiction.
One important restraint on counsel's information-gathering pursuits is reflected in the American Bar Association (ABA) Model Rules of Professional Conduct Rule 4.2 (“Model Rule 4.2″), the so-called “no-contact rule,” which prohibits a lawyer from communicating with a person whom the lawyer knows to be represented by counsel absent that counsel's consent. This article addresses some of the common issues and questions that may arise when applying Model Rule 4.2 in practice.
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.
Model Rules of Prof'l Conduct R. 4.2 (2010).
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