Ezel / Ethics Opinions / MBAR
MBAR March 3, 2005

Can a lawyer contact a represented opposing party just to get their lawyer's contact information?

Short answer: Yes. A communication intended solely to learn the identity of and contact information for the other person's lawyer is not a communication 'about the subject of the representation,' so it does not violate Rule 4.2. The lawyer must keep it strictly to that purpose.

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This page answers the general question as of 2005. Ezel answers yours: whether it's allowed on your facts, under the current Massachusetts Rules of Professional Conduct, with citations.

Currency note: this opinion is from 2005
Subsequent statutory amendments, court decisions, or later opinions or rule amendments may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.
Disclaimer: Advisory only. Not binding precedent.
About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official ethics opinion. The original opinion (linked on this page) is the authoritative source for any reliance.

Plain-English summary

A lawyer represented A in a transaction with B. The lawyer understood that B was also represented but did not have enough information to contact B's lawyer, and asked whether he could communicate with B to find out how to reach B's counsel. The committee analyzes the question under Mass. R. Prof. C. 4.2, which bars a lawyer from communicating "about the subject of the representation" with a person the lawyer knows is represented by another lawyer in the matter, absent the other lawyer's consent.

The committee concludes that the interests Rule 4.2 protects (preserving the mediating role of counsel and protecting clients from overreaching by adverse counsel) are not threatened by a communication intended solely to identify the person's attorney and get enough information to reach that attorney. The committee notes that an expansive reading forbidding such contact might actually prevent careful lawyers from establishing the lawyer-to-lawyer contact the rule contemplates. It therefore holds that a communication with a represented person intended solely to obtain contact information for that person's attorney is not a communication "about the subject of the representation."

The committee adds a strong caution. The communication must relate solely to the identity of and contact information for the person's attorney, because Rule 4.2 prohibits communication about the subject matter even if the represented person initiates it and the lawyer merely listens. Once a communication strays into the substance of the matter, the lawyer risks disqualification and discipline. Given that risk, the committee suggests it may be prudent to seek the contact information by letter, to ask B to pass the letter to his lawyer, or, if oral contact is necessary, to have a secretary make the call.

In practice

Under this opinion, conduct that contacts a represented person only to obtain their lawyer's identity and contact information is permitted and falls outside Rule 4.2. Per the opinion, the communication must stay strictly limited to that purpose, because the rule's bar applies even when the represented person initiates the conversation and the lawyer only listens. The committee describes practical ways to keep the contact within bounds, such as using a letter or routing the request through support staff, without characterizing any of them as required.

Common questions

Q: Does Rule 4.2 stop a lawyer from contacting a represented party at all?

A: No. Rule 4.2 bars communication "about the subject of the representation." The committee concludes that contact made solely to learn how to reach the person's attorney is not about the subject of the representation and is therefore permitted.

Q: What if the represented person starts talking about the case?

A: The committee warns that Rule 4.2 still applies even if the represented person initiates a substantive discussion and the lawyer only listens. Once the communication strays into the substance of the matter, the lawyer risks disqualification and discipline.

Q: How can a lawyer minimize the risk?

A: The committee suggests requesting the contact information by letter, asking the person to forward the letter to his lawyer, or having a secretary place the call if oral contact is needed.

Background and rules framework

The opinion interprets Mass. R. Prof. C. 4.2 (communication with a person represented by counsel), corresponding to Model Rule 4.2. It relies on the Supreme Judicial Court's statement of the rule's purposes in Messing, Rudavsky & Weliky, P.C. v. President and Fellows of Harvard College.

Citations and references

Rules of Professional Conduct:

  • Model Rule 4.2 / Mass. R. Prof. C. 4.2 (communication with a represented person)

Cases:

  • Messing, Rudavsky & Weliky, P.C. v. President and Fellows of Harvard College, 436 Mass. 347 (2002) (purposes of Rule 4.2)
  • Papanicolaou v. Chase Manhattan Bank, N.A., 720 F. Supp. 1080 (S.D.N.Y. 1989) (disqualification where lawyer discussed the merits with a represented plaintiff)
  • In the Matter of Howes, 940 P.2d 159 (N.M. 1997) (prosecutor censured for listening to a represented defendant)
  • In the Matter of Searer, 950 F. Supp. 811 (W.D. Mich. 1996) (reprimand for meeting with a represented person)

See also

Source

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