Can a lawyer contact an adverse corporation's in-house counsel directly to settle when outside counsel of record is unavailable, if the in-house lawyer appeared at trial as a corporate representative?

Plain-English summary

Attorney A represented a plaintiff corporation seeking life insurance proceeds under a "key man" policy. The defendant insurer was represented by Attorney B as counsel of record. At trial, Mr. C, an assistant general counsel for the insurer who was not counsel of record and not licensed in North Carolina, appeared as the corporate representative, that is, as a person having managerial responsibility for the defendant. After a defense verdict, Attorney A moved for JNOV or a new trial and tried to reach Attorney B for settlement talks, but Attorney B and his associate, also counsel of record, were on vacation. Attorney A then telephoned Mr. C directly, knowing he was a lawyer in the insurer's general counsel office, and the two reached a settlement without input from counsel of record. The inquiry asked whether Attorney A acted properly.

The opinion concluded that he did not. Because Mr. C had participated at trial as a person having managerial responsibility, Rule 7.4(a) prohibited Attorney A from contacting him about the case without the consent of the corporation's counsel of record.

Currency note

This opinion was issued in 1993, before the North Carolina State Bar's adoption of the 2003 revisions to the Rules of Professional Conduct. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Can a lawyer contact an adverse corporation's in-house counsel directly when outside counsel is unavailable?

A: Not on these facts. The opinion held that because the in-house lawyer had acted at trial as a managerial representative of the corporation, Rule 7.4(a) barred contact about the case without counsel of record's consent.

Q: Does it matter that counsel of record was on vacation?

A: No. The opinion treated the unavailability of counsel of record as no excuse; the proper course was to obtain that counsel's consent.

Q: Does it matter that the in-house lawyer is himself an attorney?

A: The opinion turned on his role as a managerial corporate representative, not his status as a lawyer; that managerial role brought him within the no-contact rule's protection.

Background and rules framework

The opinion applied North Carolina Rule 7.4(a), the rule against communicating with a represented party about the subject of the representation without the other lawyer's consent (corresponding to Model Rule 4.2). The analysis turns on the in-house lawyer's participation as a person with managerial responsibility for the corporate party, which placed him within the protection of counsel of record.

Citations and references

Rules of Professional Conduct:

• MR 4.2 (communication with a represented person; organizational constituents)
• North Carolina Rule 7.4(a) (communication with a represented party)

See also

• NC Ethics Op. RPC 132: communications with government officials
• NC Ethics Op. RPC 9: corporate house counsel; lenders, borrowers, and loan closings

Source

• Landing page: https://www.ncbar.gov/for-lawyers/ethics-and-governing-rules/ethics-opinions/opinions/rpc-128/

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

Editor's Note: This opinion was originally published as RPC 128 (Second Revision).

Inquiry:

Attorney A represents plaintiff corporation in an action to recover life insurance proceeds under a "key man" policy covering an officer of the corporation who is now deceased. Attorney B appears as counsel of record for the life insurance company, a foreign corporation, defending on the basis of a suicide exclusion in the life insurance policy. At the trial of the action, Mr. C appeared as the corporate representative for the insurance company. Mr. C is an assistant general counsel for the insurance company. Although Mr. C is an attorney, he appeared at trial as a person having managerial responsibility on behalf of the defendant. Mr. C did not appear as counsel of record in the pending litigation and is not licensed in the State of North Carolina.

A jury verdict of suicide was returned in favor of the defendant insurance company. Attorney A filed a motion for JNOV or new trial. Before the time for the defendant's response had expired, Attorney A attempted to contact Attorney B in order to enter into settlement negotiations. Attorney B's secretary advised Attorney A that Attorney B and his associate, who was also counsel of record in the action, were both on vacation. Attorney A then telephoned Mr. C directly, without the knowledge or consent of Attorney B or his associate. Attorney A advised Mr. C that both Attorney B and his associate were on vacation and asked whether he could speak directly with Mr. C, knowing Mr. C to be a lawyer with general counsel's office for the defendant insurance company. Mr. C agreed to talk directly with Attorney A, and an agreement to settle the lawsuit prior to post-trial motions was reached without the advice or input of Attorney B or his associate.

Did Attorney A act properly in contacting Mr. C without the knowledge or consent of the adverse corporate party's independent counsel of record?

Opinion:

No. Since Mr. C. participated at trial as a person having managerial responsibility, Rule 7.4(a) prohibited Attorney A from contacting him concerning the case without the consent of the corporation's counsel of record.