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).

The purpose of Model Rule 4.2 is to “protect[] 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.” Id. cmt. 1.

When Does Model Rule 4.2 Apply?

Model Rule 4.2 applies regardless of legal context. Although it tends to be implicated most frequently in litigators' fact-gathering pursuits, it is not limited to litigation. Rather,
“[t]his Rule applies to communications with any person who is represented by counsel concerning the matter to which the communication relates.” Id. cmt. 2. See also Ronald D. Rotunda and John S. Dzienkowski, Legal Ethics: The Lawyer's Deskbook on Professional Responsibility
' 4.2-1(a) n.8 (2010-11 ed.) (“Lawyer's Deskbook”). Thus, the restriction imposed by Model Rule 4.2 extends over various situations, including transactional representations.

When Does a Lawyer 'Know' a Person Is Represented by Counsel?

Model Rule 4.2's prohibition on communications with a represented person applies only when the lawyer “knows” that the person is in fact represented by counsel in the matter that the lawyer wishes to discuss. Model Rule 4.2. Under the ABA Model Rules, “'Knowingly,' 'known,' or 'knows' denotes actual knowledge of the fact in question. A person's knowledge may be inferred from circumstances.” Model Rules of Prof'l Conduct R. 1.0(f) (2010). Both Model Rule 4.2 and ABA Formal Opinion 95-396 emphasize, however, that a lawyer may not ignore obvious indications that a person is represented “simply by closing [his] eyes to the obvious.” ABA Comm. on Ethics & Prof'l Responsibility Formal Op. 95-396, Part IV (1995). See also Model Rule 4.2 cmt. 8. Thus, willful blindness or otherwise burying one's head in the sand is not an option for ethically compliant counsel.

Moreover, where a lawyer does not know that a person is represented by counsel, the lawyer must still comply with ABA Model Rules of Professional Conduct Rule 4.3 (“Model Rule 4.3″), which states:

In dealing on behalf of a client with a person who is not represented by counsel, a lawyer shall not state or imply that the lawyer is disinterested. When the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer's role in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding.

Model Rules of Prof'l Conduct R. 4.3 (2010).

Inherent in Model Rule 4.3 is a lawyer's duty to avoid misleading an unrepresented party. Model Rule 4.3 recommends that in order to avoid a misunderstanding, counsel identify his client and, if necessary, explain that the client may have interests adverse to the unrepresented person. See Id. cmt. 1. Through such disclosures, a lawyer complies with Model Rule 4.3 and, in so doing, will “know” whether a person is represented by counsel in the matter to avoid a violation of Model Rule 4.2.

When May a Represented Person Initiate Contact with the Lawyer of Another Represented Person?

Even if a represented person contacts the lawyer of another person in the matter, the contacted lawyer must abide by Model Rule 4.2 and refrain from communicating with that person unless the latter's counsel consents. Under Model Rule 4.2, a represented person may not unilaterally forgo the protections of Model Rule 4.2 and initiate communications with opposing counsel. Only the represented person's lawyer may consent to such a counsel-free communication. See Model Rule 4.2 cmt. 3; ABA Formal Op. 95-396, Part VII. This restriction on the represented person reflects “the concern that the represented person may not be in a position to make an informed waiver of the presence of counsel ' ” and “ operates to reduce the likelihood of the represented person engaging in communications that might ultimately prove harmful to her cause ' .” ABA Formal Op. 95-396, Part VII.

A lawyer may respond to the represented person only where that person's lawyer has first consented or has given implied consent to the communication. See Restatement (Third) of the Law Governing Lawyers ' 99 cmt. j (2000). An opposing lawyer may be considered to have impliedly acquiesced to a communication if he is in the room, observes the communication and does not object. Id. In certain jurisdictions, where a lawyer has copied his own client on an e-mail to an opposing attorney, he may be deemed to have provided implied consent to a “reply to all” response from the opposing attorney. N.Y. City Bar Assoc. Formal Op. 2009-1 (2009).

When May a Lawyer Communicate with a Represented Person?

Model Rule 4.2 bars communications between a lawyer and a represented party when the communication concerns the same or related matter. The Rule does not bar communications between the lawyer and represented person on unrelated matters. See ABA Formal Op. 95-396, Part V; Model Rule 4.2 cmt. 4. The question of whether two matters are sufficiently related to implicate the restrictions of Model Rules 4.2 is fact-dependent and may constitute a trap for the unwary. For example, when two employees each separately sue their common employer for employment discrimination, any communication between the attorney for one employee and the other represented employee would likely be prohibited under Model Rule 4.2 because the individual claims may be linked by the same underlying set of facts. See Lawyer's Deskbook ' 4.2-4 n.2 (citing Parker v. Pepsi-Cola, 249 F. Supp. 2d 1006 (N.D. Ill. 2003)); ABA Formal Op. 95-396, Part V.

When May Clients Speak Directly to Each Other?

Model Rule 4.2 permits clients to speak directly with their counterparts about the underlying matter, and allows counsel to advise clients to engage in such communications. Model Rule 4.2 cmt. 4. However, this does not constitute an invitation for resourceful counsel to communicate indirectly with a represented person. Thus, counsel still cannot prepare a script for the client, assist the client in seeking privileged or confidential information, or assist the client in persuading the other person to take action without counsel. See Lawyer's Deskbook ' 4.2-5 & n.8 (citing State Bar of Cal. Formal Op. 1993-131 (1993)); Restatement (Third) of the Law Governing Lawyers ' 99 cmt. k (2000).

When May a Lawyer Contact an Organization and Its Employees?

While Model Rule 4.2 applies both to individual persons as well as organizations, the Rule's application becomes more complex where the represented person is an entity. As an organization can operate only through its agents, Model Rule 4.2 prohibits lawyers from communicating with certain corporate agents, as follows:

In the case of a represented organization, this Rule prohibits communications with a constituent of the organization who supervises, directs or regularly consults with the organization's lawyer concerning the matter or has authority to obligate the organization with respect to the matter or whose act or omission in connection with the matter may be imputed to the organization for purposes of civil or criminal liability.

Model Rule 4.2 cmt. 7 (emphasis added).

Under this standard, a lawyer may contact any employee except those who regularly consult with the corporation's counsel about the matter, have authority to bind the organization with respect to the matter or whose actions and interests in the matter are deeply intertwined with those of the corporation. If an employee is represented by his or her own counsel, the lawyer seeking to communicate with the employee need only seek consent from the employee's personal counsel. See Id.

When May a Lawyer Communicate with a Former Employee?

In general, if a lawyer wishes to communicate with an organization's former employee, she is not required to seek consent from the former employer's counsel. See Id.; ABA Comm. on Ethics & Prof'l Responsibility Formal Op. 91-359 (1991). Most state and federal courts and state ethics opinions support the ABA view that former employees are generally not covered under Model Rule 4.2. See Lawyer's Deskbook ' 4.2-6(c). One commentator observed that this approach derives from the fact that the employer's attorney does not have an attorney-client relationship with the former employee. See Id. & n.20. If, however, the former employee is represented by counsel in the matter to be discussed, then the lawyer must comply with Model Rule 4.2 and obtain consent from that counsel before communicating directly with the former employee.

It should be noted that despite support for the ABA's position by federal and many state authorities, a lawyer may be prohibited from directly communicating with a former employee if that person possesses extensive privileged or confidential information (i.e., attorney-client privilege, work product doctrine, physician-patient privilege, etc.) as a result of being centrally involved in the matter at issue. See Id. ' 4.2-6(d); John K. Villa, Collateral: Ex Parte Interviews with Current and Former Employees 124 (Sept. 2007), available at www.wc.com/assets/attachments/ep.pdf; ABA Formal Op. 91-359. The restriction on such employees is due to a concern that a lawyer may “seek to obtain information that the lawyer reasonably should know the non-client may not reveal without violating a duty of confidentiality to another imposed by law.” Lawyer's Deskbook ' 4.2-6(d) (citing Restatement (Third) of the Law Governing Lawyers ' 102 (2000)).

Guidelines to Reduce the Risk of a Violation of
Model Rule 4.2

• Remember, Model Rule 4.2 applies in all situations where persons are represented in a matter, not just in litigation.
• Before communicating with a person, assess the situation, looking for signs that he or she is represented by counsel in the matter. If you do not know that the person is represented and you initiate contact, ensure that your role in the matter is communicated clearly. Where a person states that he or she is no longer represented by counsel, you should consider seeking confirmation of this fact or deferring the discussion until new counsel is retained. See ABA Formal Op. 95-396, Part VIII.
• If a represented person contacts you, do not engage in the communication absent consent from that person's counsel. Remember, only the lawyer of a represented person may consent to such communications. Even when you believe you have the implied consent of the person's lawyer, it may still be prudent to avoid second-guessing by obtaining that lawyer's express consent.
• Take reasonable steps to ensure that your non-lawyer assistants and agents act in a manner consistent with your professional obligations under the Model Rules. Even where the lawyer does not explicitly direct an agent to engage in an improper communication, that lawyer may still be liable for an ethics violation under certain circumstances, including if he is aware of the improper contact and ratifies it. See Model Rules of Prof'l Conduct R. 5.3 (2010).
• When engaging in permissible fact-gathering among unrepresented employees or former employees of a represented corporation, use care to avoid inadvertently eliciting information that may be privileged between the employee or former employee and that employer's counsel. See ABA Formal Op. 91-359. Such an act may constitute a violation of ABA Model Rules of Professional Conduct Rule 4.4 (Respect for Rights of Third Persons).

Conclusion

Although frequently termed “informal communications,” a lawyer should exercise sound professional judgment and care before directly contacting a non-attorney in relation to a matter. Consequences for violating the no-contact rule may be severe, both for counsel and his client. Even Aristotle tempered his observation that “all men by nature desire knowledge” in recognizing that “all virtue is summed up in dealing justly.”

Lawrence S. Spiegel, a member of this newsletter's Board of Editors, is a partner in the White Collar Criminal Defense Group of Skadden, Arps, Slate, Meagher & Flom LLP, and serves as the firm's General Counsel. Deborah M. Chow is a senior staff attorney in the Office of the General Counsel.

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).

The purpose of Model Rule 4.2 is to “protect[] 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.” Id. cmt. 1.

When Does Model Rule 4.2 Apply?

Model Rule 4.2 applies regardless of legal context. Although it tends to be implicated most frequently in litigators' fact-gathering pursuits, it is not limited to litigation. Rather,
“[t]his Rule applies to communications with any person who is represented by counsel concerning the matter to which the communication relates.” Id. cmt. 2. See also Ronald D. Rotunda and John S. Dzienkowski, Legal Ethics: The Lawyer's Deskbook on Professional Responsibility
' 4.2-1(a) n.8 (2010-11 ed.) (“Lawyer's Deskbook”). Thus, the restriction imposed by Model Rule 4.2 extends over various situations, including transactional representations.

When Does a Lawyer 'Know' a Person Is Represented by Counsel?

Model Rule 4.2's prohibition on communications with a represented person applies only when the lawyer “knows” that the person is in fact represented by counsel in the matter that the lawyer wishes to discuss. Model Rule 4.2. Under the ABA Model Rules, “'Knowingly,' 'known,' or 'knows' denotes actual knowledge of the fact in question. A person's knowledge may be inferred from circumstances.” Model Rules of Prof'l Conduct R. 1.0(f) (2010). Both Model Rule 4.2 and ABA Formal Opinion 95-396 emphasize, however, that a lawyer may not ignore obvious indications that a person is represented “simply by closing [his] eyes to the obvious.” ABA Comm. on Ethics & Prof'l Responsibility Formal Op. 95-396, Part IV (1995). See also Model Rule 4.2 cmt. 8. Thus, willful blindness or otherwise burying one's head in the sand is not an option for ethically compliant counsel.

Moreover, where a lawyer does not know that a person is represented by counsel, the lawyer must still comply with ABA Model Rules of Professional Conduct Rule 4.3 (“Model Rule 4.3″), which states:

In dealing on behalf of a client with a person who is not represented by counsel, a lawyer shall not state or imply that the lawyer is disinterested. When the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer's role in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding.

Model Rules of Prof'l Conduct R. 4.3 (2010).

Inherent in Model Rule 4.3 is a lawyer's duty to avoid misleading an unrepresented party. Model Rule 4.3 recommends that in order to avoid a misunderstanding, counsel identify his client and, if necessary, explain that the client may have interests adverse to the unrepresented person. See Id. cmt. 1. Through such disclosures, a lawyer complies with Model Rule 4.3 and, in so doing, will “know” whether a person is represented by counsel in the matter to avoid a violation of Model Rule 4.2.

When May a Represented Person Initiate Contact with the Lawyer of Another Represented Person?

Even if a represented person contacts the lawyer of another person in the matter, the contacted lawyer must abide by Model Rule 4.2 and refrain from communicating with that person unless the latter's counsel consents. Under Model Rule 4.2, a represented person may not unilaterally forgo the protections of Model Rule 4.2 and initiate communications with opposing counsel. Only the represented person's lawyer may consent to such a counsel-free communication. See Model Rule 4.2 cmt. 3; ABA Formal Op. 95-396, Part VII. This restriction on the represented person reflects “the concern that the represented person may not be in a position to make an informed waiver of the presence of counsel ' ” and “ operates to reduce the likelihood of the represented person engaging in communications that might ultimately prove harmful to her cause ' .” ABA Formal Op. 95-396, Part VII.

A lawyer may respond to the represented person only where that person's lawyer has first consented or has given implied consent to the communication. See Restatement (Third) of the Law Governing Lawyers ' 99 cmt. j (2000). An opposing lawyer may be considered to have impliedly acquiesced to a communication if he is in the room, observes the communication and does not object. Id. In certain jurisdictions, where a lawyer has copied his own client on an e-mail to an opposing attorney, he may be deemed to have provided implied consent to a “reply to all” response from the opposing attorney. N.Y. City Bar Assoc. Formal Op. 2009-1 (2009).

When May a Lawyer Communicate with a Represented Person?

Model Rule 4.2 bars communications between a lawyer and a represented party when the communication concerns the same or related matter. The Rule does not bar communications between the lawyer and represented person on unrelated matters. See ABA Formal Op. 95-396, Part V; Model Rule 4.2 cmt. 4. The question of whether two matters are sufficiently related to implicate the restrictions of Model Rules 4.2 is fact-dependent and may constitute a trap for the unwary. For example, when two employees each separately sue their common employer for employment discrimination, any communication between the attorney for one employee and the other represented employee would likely be prohibited under Model Rule 4.2 because the individual claims may be linked by the same underlying set of facts. See Lawyer's Deskbook ' 4.2-4 n.2 (citing Parker v. Pepsi-Cola , 249 F. Supp. 2d 1006 (N.D. Ill. 2003)); ABA Formal Op. 95-396, Part V.

When May Clients Speak Directly to Each Other?

Model Rule 4.2 permits clients to speak directly with their counterparts about the underlying matter, and allows counsel to advise clients to engage in such communications. Model Rule 4.2 cmt. 4. However, this does not constitute an invitation for resourceful counsel to communicate indirectly with a represented person. Thus, counsel still cannot prepare a script for the client, assist the client in seeking privileged or confidential information, or assist the client in persuading the other person to take action without counsel. See Lawyer's Deskbook ' 4.2-5 & n.8 (citing State Bar of Cal. Formal Op. 1993-131 (1993)); Restatement (Third) of the Law Governing Lawyers ' 99 cmt. k (2000).

When May a Lawyer Contact an Organization and Its Employees?

While Model Rule 4.2 applies both to individual persons as well as organizations, the Rule's application becomes more complex where the represented person is an entity. As an organization can operate only through its agents, Model Rule 4.2 prohibits lawyers from communicating with certain corporate agents, as follows:

In the case of a represented organization, this Rule prohibits communications with a constituent of the organization who supervises, directs or regularly consults with the organization's lawyer concerning the matter or has authority to obligate the organization with respect to the matter or whose act or omission in connection with the matter may be imputed to the organization for purposes of civil or criminal liability.

Model Rule 4.2 cmt. 7 (emphasis added).

Under this standard, a lawyer may contact any employee except those who regularly consult with the corporation's counsel about the matter, have authority to bind the organization with respect to the matter or whose actions and interests in the matter are deeply intertwined with those of the corporation. If an employee is represented by his or her own counsel, the lawyer seeking to communicate with the employee need only seek consent from the employee's personal counsel. See Id.

When May a Lawyer Communicate with a Former Employee?

In general, if a lawyer wishes to communicate with an organization's former employee, she is not required to seek consent from the former employer's counsel. See Id.; ABA Comm. on Ethics & Prof'l Responsibility Formal Op. 91-359 (1991). Most state and federal courts and state ethics opinions support the ABA view that former employees are generally not covered under Model Rule 4.2. See Lawyer's Deskbook ' 4.2-6(c). One commentator observed that this approach derives from the fact that the employer's attorney does not have an attorney-client relationship with the former employee. See Id. & n.20. If, however, the former employee is represented by counsel in the matter to be discussed, then the lawyer must comply with Model Rule 4.2 and obtain consent from that counsel before communicating directly with the former employee.

It should be noted that despite support for the ABA's position by federal and many state authorities, a lawyer may be prohibited from directly communicating with a former employee if that person possesses extensive privileged or confidential information (i.e., attorney-client privilege, work product doctrine, physician-patient privilege, etc.) as a result of being centrally involved in the matter at issue. See Id. ' 4.2-6(d); John K. Villa, Collateral: Ex Parte Interviews with Current and Former Employees 124 (Sept. 2007), available at www.wc.com/assets/attachments/ep.pdf; ABA Formal Op. 91-359. The restriction on such employees is due to a concern that a lawyer may “seek to obtain information that the lawyer reasonably should know the non-client may not reveal without violating a duty of confidentiality to another imposed by law.” Lawyer's Deskbook ' 4.2-6(d) (citing Restatement (Third) of the Law Governing Lawyers ' 102 (2000)).

Guidelines to Reduce the Risk of a Violation of
Model Rule 4.2

• Remember, Model Rule 4.2 applies in all situations where persons are represented in a matter, not just in litigation.
• Before communicating with a person, assess the situation, looking for signs that he or she is represented by counsel in the matter. If you do not know that the person is represented and you initiate contact, ensure that your role in the matter is communicated clearly. Where a person states that he or she is no longer represented by counsel, you should consider seeking confirmation of this fact or deferring the discussion until new counsel is retained. See ABA Formal Op. 95-396, Part VIII.
• If a represented person contacts you, do not engage in the communication absent consent from that person's counsel. Remember, only the lawyer of a represented person may consent to such communications. Even when you believe you have the implied consent of the person's lawyer, it may still be prudent to avoid second-guessing by obtaining that lawyer's express consent.
• Take reasonable steps to ensure that your non-lawyer assistants and agents act in a manner consistent with your professional obligations under the Model Rules. Even where the lawyer does not explicitly direct an agent to engage in an improper communication, that lawyer may still be liable for an ethics violation under certain circumstances, including if he is aware of the improper contact and ratifies it. See Model Rules of Prof'l Conduct R. 5.3 (2010).
• When engaging in permissible fact-gathering among unrepresented employees or former employees of a represented corporation, use care to avoid inadvertently eliciting information that may be privileged between the employee or former employee and that employer's counsel. See ABA Formal Op. 91-359. Such an act may constitute a violation of ABA Model Rules of Professional Conduct Rule 4.4 (Respect for Rights of Third Persons).

Conclusion

Although frequently termed “informal communications,” a lawyer should exercise sound professional judgment and care before directly contacting a non-attorney in relation to a matter. Consequences for violating the no-contact rule may be severe, both for counsel and his client. Even Aristotle tempered his observation that “all men by nature desire knowledge” in recognizing that “all virtue is summed up in dealing justly.”

Lawrence S. Spiegel, a member of this newsletter's Board of Editors, is a partner in the White Collar Criminal Defense Group of Skadden, Arps, Slate, Meagher & Flom LLP, and serves as the firm's General Counsel. Deborah M. Chow is a senior staff attorney in the Office of the General Counsel.