When may a lawyer contact someone she knows is represented by another lawyer, and does the no-contact rule reach criminal investigations, a corporation's employees, and contacts the represented person starts herself?
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This page answers the general question as of 1995. Ezel answers yours: whether it's allowed on your facts, under the current rules of professional conduct in your state, with citations.
Plain-English summary
Prompted in part by the dialogue between the ABA and the U.S. Department of Justice over the Department's regulations on contacts with represented persons (28 C.F.R. Part 77), the committee undertook a comprehensive reading of Rule 4.2 (the "anti-contact" or "no-contact" rule) and answered ten framing questions about its scope.
It concluded that Rule 4.2 applies to lawyers in criminal matters as well as civil ones, reaching both prosecutors and defense counsel, and is not merely coextensive with the Fifth and Sixth Amendments; ethics rules may protect a represented person beyond what the Constitution requires. The committee read the Rule's word "party" broadly to mean any "person" known to be represented with respect to the matter to be discussed -- not only formally named litigants -- so the bar can attach before suit is filed and in transactional settings, covering targets of criminal investigations, potential civil parties, and represented witnesses.
The committee qualified the criminal-investigation context: although it rejected the view that Rule 4.2 has no application before indictment, it recognized a body of court decisions treating some pre-arrest, pre-charge contacts by undercover agents or informants (who are not the prosecutor's "alter ego") as permissible, and concluded that, so long as that precedent stands, such contacts may be treated as "authorized by law." The bar applies only where the lawyer "knows" of the representation -- actual knowledge, which may be inferred from the circumstances, so a lawyer may not "close her eyes to the obvious" -- and Rule 4.2, unlike Rule 4.3, imposes no affirmative duty to inquire.
The prohibition is limited to communications about the subject matter linking the two representations; it does not bar contact about unrelated matters, and a client cannot trigger the Rule by claiming a vague, "blanket" representation in all matters, because the matter must be "concretely identified." When the represented party is an organization, the bar covers those with managerial responsibility plus anyone whose act or omission may be imputed to the organization or whose statement may be an admission -- but a lawyer cannot insulate every employee by declaring a blanket representation, and former employees are not covered. The protection cannot be waived by the represented person who initiates the contact, and when a person claims to have terminated her representation the communicating lawyer should obtain reasonable assurance that the discharge is effective (and, in court matters, that counsel has been granted leave to withdraw) before substantive discussion. Finally, a lawyer is ethically responsible under Rule 5.3 for an investigator who, acting as her alter ego, contacts a represented person in a way the lawyer herself could not.
Currency note
This opinion was issued in 1995, before the American Bar Association's adoption of the 2002 (Ethics 2000) revisions to the Model Rules of Professional Conduct, which amended Rule 4.2 -- including substituting "person" for "party" in the Rule's text, the very change the committee here proposed and anticipated. Subsequent rule amendments or later opinions (including ABA Formal Opinion 97-408, which extends this analysis to represented government entities) may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule or requirement mentioned here.
Common questions
Q: Does the no-contact rule apply in criminal cases?
A: Yes. The committee concluded that Rule 4.2 governs lawyers in criminal as well as civil matters, including both prosecutors and defense counsel, and is not limited to the protections of the Fifth and Sixth Amendments.
Q: Does "party" mean only a named litigant?
A: No. The committee read "party" to mean any person known to be represented with respect to the matter, so the bar can apply before a lawsuit is filed and in transactions, covering investigation targets, potential parties, and represented witnesses.
Q: Can a lawyer for a corporation block all contact with its employees?
A: No. The bar covers employees with managerial responsibility and those whose acts or statements may be imputed to the organization, but a lawyer cannot insulate every employee by asserting a blanket representation, and former employees are not covered.
Q: Does the rule still apply if the represented person starts the conversation?
A: Yes. The committee concluded the protection is not waivable by the represented person, so initiating the contact does not remove the bar; if the person says she has fired her lawyer, the communicating lawyer should first get reasonable assurance the representation has actually ended.
Q: Is a lawyer responsible for an investigator's contacts?
A: Yes. Under Rule 5.3, a lawyer is ethically responsible for an investigator who acts as her "alter ego" and contacts a represented person in circumstances where the lawyer herself would be barred.
Background and rules framework
The opinion is the committee's comprehensive interpretation of Model Rule 4.2 (communication with a person represented by counsel), tracing the anti-contact precept from Hoffman's 1836 treatise through Canon 9, DR 7-104(A)(1), and EC 7-18. It distinguishes Rule 4.3 (dealing with unrepresented persons, which carries a "reasonably should know" standard and a limited duty to correct misunderstandings) and applies Rule 5.3 (responsibilities regarding nonlawyer assistants) to investigators acting under a lawyer's direction, with Rules 4.4 and 8.4 noted as additional constraints. Because the ABA interprets the Model Rules directly, there is no state-rule analogue.
Citations and references
Rules of Professional Conduct:
- MR 4.2 (communication with a person represented by counsel; the "no-contact" rule)
- MR 4.3 (dealing with unrepresented persons)
- MR 5.3 (responsibilities regarding nonlawyer assistants)
- MR 4.4 (respect for rights of third persons)
- MR 8.4 (misconduct)
Authorities and regulations:
- 28 C.F.R. Part 77 (Department of Justice regulations on Communications with Represented Persons)
- United States v. Hammad, 858 F.2d 834 (2d Cir. 1988) (DR 7-104 applies before formal charges; "alter ego" analysis)
- United States v. Ryans, 903 F.2d 731 (10th Cir. 1990) (rule inapplicable to the pre-charge investigative phase)
- Niesig v. Team I, 76 N.Y.2d 363 (1990); Upjohn Co. v. United States, 449 U.S. 383 (1981) (scope of organizational coverage)
Other opinions cited:
- ABA Formal Op. 108 (1934) (anti-contact protection not waivable by the represented person)
- ABA Formal Op. 91-359 (1991) (rule does not bar contact with former employees)
See also
- ABA Formal Op. 97-408: Communicating with a represented government agency
- ABA Formal Op. 91-359: Contact with a former employee of an adverse corporate party
- ABA Formal Op. 92-362: Contact with an opposing party about a settlement offer
- RI EAP Op. 2011-03: Ex Parte Meeting With a Corporate Defendant's Former Employee Who Was Represented by Counsel at Deposition
- RI EAP Op. 2012-02: Rule 4.2 Permits Ex Parte Communication With a Former Employee of an Adverse Corporate Party Without Opposing Counsel's Consent
Source
- Landing page: ABA Formal Ethics Opinions index
- Original PDF: 95-396.pdf
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