Does the no-contact rule require a lawyer to get permission before interviewing a nonparty witness who has her own lawyer for the same matter?

Plain-English summary

Attorney A had sued Z in a civil matter and wished to contact X, a nonparty potential witness. X told Attorney A that she had her own attorney for the civil matter but was willing to discuss it with Attorney A anyway. The inquiry asked whether Attorney A had to obtain permission from X's attorney before discussing the matter further, and whether the comment's extension of the no-contact rule to nonparties was merely aspirational or obligatory, given that Rule 7.4's express language appeared limited to parties.

The opinion concluded that, once Attorney A learned X had an attorney, A had to obtain that attorney's permission before discussing the civil matter with X. It reasoned that the portion of the comment quoted in the inquiry, applying the rule to "any person, whether or not a party to a formal proceeding, who is represented by counsel concerning the matter in question," makes this clear, and that the comment, as in most cases, is intended to explain the Rule. The opinion explained that, as a matter of policy, Rule 7.4(a) was designed to reduce the risk that an attorney-client relationship on a particular matter might be subverted by the importunings of counsel for others whose interests in the same matter might be adverse, and that a potential witness's relationship with her counsel is no less worthy of protection than a named party's.

Currency note

This opinion was issued in 1990, before the North Carolina State Bar's adoption of the 2003 revisions to the Rules of Professional Conduct. The no-contact rule it applies (Rule 7.4(a)) has since been renumbered as Rule 4.2. 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 Treat this page as historical context, not current guidance.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: Does the no-contact rule cover witnesses, or only parties?

A: The opinion concluded that it covers a represented nonparty witness, relying on the comment extending the rule to any person represented by counsel concerning the matter.

Q: Does it matter that the witness is willing to talk?

A: No. The opinion concluded that, once the lawyer learns the witness is represented, the lawyer must get her counsel's permission before discussing the matter, regardless of the witness's willingness.

Q: Is the comment binding or just aspirational?

A: The opinion concluded the comment is obligatory, intended to explain the Rule, not merely an aspirational standard.

Background and rules framework

The opinion applied North Carolina Rule 7.4(a), the no-contact rule barring communication with a represented person about the matter without that person's counsel's consent (corresponding to Model Rule 4.2). The opinion read the rule together with its comment, which extends the protection to any represented person whether or not a formal party, and grounded the result in the policy of protecting the attorney-client relationship from interference by adverse counsel.

Citations and references

Rules of Professional Conduct:

• North Carolina Rule 7.4(a) and comment (no contact with a represented person, party or not, without counsel's consent)
• MR 4.2 (communication with a person represented by counsel)

See also

• NC Ethics Op. RPC 30: communication with a represented criminal defendant
• NC Ethics Op. RPC 128: communication with an adverse corporation's house counsel

Source

• Landing page: https://www.ncbar.gov/for-lawyers/ethics-and-governing-rules/ethics-opinions/opinions/rpc-87/

Original opinion text

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

Inquiry:

Attorney A has filed suit against Z in a civil matter. Attorney A wishes to contact X, who is a nonparty, potential witness. X has informed Attorney A that she has an attorney representing her respecting the civil matter about which Attorney A has sued Z. X is willing to discuss the civil matter with Attorney A, however. Once Attorney A learns that X has an attorney, must A obtain permission of X's attorney before discussing the civil matter with X further?

The express language of Rule 7.4 appears to be limited only to parties in a matter. The last sentence of the comment to the Rule, however, states that it applies to "any person, whether or not a party to a formal proceeding, who is represented by counsel concerning the matter in question." (emphasis added) Since this language is in the comment, rather than the Rule itself, does it represent only an aspirational standard, or is it obligatory?

Opinion:

Once Attorney A learns that X has an attorney, A must obtain the permission of X's attorney before discussing the civil matter with X. This is made clear by that portion of the comment to the Rule which is set forth in the inquiry. In this instance, as in most cases, the comment is intended to explain the Rule.

As a matter of policy, Rule 7.4(a) was designed to reduce the risk that an attorney/client relationship in regard to a particular matter might be subverted by the importunings of counsel representing other persons or entities whose interests in the same matter might be adverse. The attorney/client relationship enjoyed by a potential witness and his or her counsel is no less worthy of protection than that enjoyed by any named party and his or her lawyer.