Can a lawyer contact someone who is represented by another lawyer in a different, unrelated matter?

Plain-English summary

Informal Opinion EI-17-04 addresses three situations under SCR 20:4.2 (contact with represented persons). The rule bars a lawyer, in representing a client, from communicating about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, absent consent or legal authorization.

In the first scenario, a lawyer representing a client in Matter A wants to contact a witness who is represented by counsel in a separate Matter B. The committee concluded that SCR 20:4.2 applies only to a person represented in the same matter, so the lawyer is free to contact the witness about Matter A without the witness's lawyer's consent. The opinion relies on ABA Formal Opinion 95-396 and notes that the rule does not even bar contact about a related matter so long as the person is unrepresented in it; for example, a lawyer in a civil suit may contact a person who has counsel only on parallel criminal charges. When contacting an unrepresented person, the lawyer still owes the duties summarized in Wisconsin Ethics Opinion E-07-01 (disclosing the lawyer's role under SCR 20:4.3, not giving conflicting legal advice, not eliciting privileged information under SCR 20:4.4, and not making false statements under SCR 20:4.1 and 20:8.4).

In the second scenario, a represented person seeks a second opinion or wants to discuss changing lawyers. The committee concluded that, as long as the consulted lawyer represents no one in the matter, the lawyer may meet with the person without the consent of, or notice to, the current lawyer. That meeting is governed by SCR 20:1.18 (duties to a prospective client): the lawyer may not use or reveal information learned in the consultation, including the fact of the consultation itself, without the prospective client's informed consent.

In the third scenario, a discharged lawyer wants to communicate with a former client now represented by successor counsel. Following New York City Bar Formal Opinion 2011-1 and a body of authority that a self-represented lawyer is still bound by Rule 4.2, the committee concluded that SCR 20:4.2 applies, so the former lawyer must seek successor counsel's permission to communicate about matters within the scope of that representation, though the lawyer remains free to contact the former client about matters outside that scope (such as unpaid fees, absent reason to believe successor counsel handles them).

In practice

The opinion holds that, under SCR 20:4.2 as it stood at the time, the no-contact rule is matter-specific: representation in one matter does not shield a person from contact about a different matter in which the person is unrepresented. Under the opinion, a lawyer who represents no one in the relevant matter may communicate with a represented person about it, a lawyer may give a represented person a second opinion (with SCR 20:1.18 confidentiality attaching), and a discharged lawyer must route communications about the representation through successor counsel.

Common questions

Q: Can a lawyer interview a witness who has a lawyer on a different case?

A: Yes. The opinion concludes SCR 20:4.2 applies only to the matter in which the person is represented, so a lawyer may contact a witness represented only in an unrelated matter without that lawyer's consent.

Q: Can a lawyer give a second opinion to someone who already has a lawyer?

A: Yes, provided the lawyer represents no one in the matter. The opinion treats the person as a prospective client under SCR 20:1.18, so the consulted lawyer may not reveal the consultation, including its existence, without the person's informed consent.

Q: Can a fired lawyer contact the former client directly once successor counsel appears?

A: Not about matters within successor counsel's representation. The opinion concludes SCR 20:4.2 applies to a self-represented lawyer, so the former lawyer must seek successor counsel's permission; contact about matters outside that scope, such as unpaid fees, is not barred.

Q: Does contacting an unrepresented person carry its own duties?

A: Yes. The opinion restates the duties from E-07-01: disclose the lawyer's role (SCR 20:4.3), avoid giving conflicting advice, avoid eliciting privileged information (SCR 20:4.4), and make no false statements of material fact (SCR 20:4.1, 20:8.4).

Background and rules framework

The opinion interprets SCR 20:4.2 / Model Rule 4.2 (communication with a person represented by counsel) and applies SCR 20:1.18 / Model Rule 1.18 (duties to a prospective client) to second-opinion consultations. It also draws on the duties to unrepresented persons in SCR 20:4.3 / Model Rule 4.3, and references SCR 20:4.4, 20:4.1, and 20:8.4.

Citations and references

Rules of Professional Conduct:

• Model Rule 4.2 / SCR 20:4.2 (communication with person represented by counsel)
• Model Rule 1.18 / SCR 20:1.18 (duties to prospective client)
• Model Rule 4.3 / SCR 20:4.3 (dealing with unrepresented person); also SCR 20:4.4, 20:4.1, 20:8.4

Cases:

• People v. Santiago, 925 N.E.2d 1122 (Ill. 2010), interviewing a represented suspect about a separate matter
• In re Discipline of Schaefer, 25 P.3d 191 (Nev. 2001), Rule 4.2 applies to a pro se lawyer

Other opinions cited:

• ABA Formal Opinion 95-396 (no-contact rule limited to the same matter)
• New York City Bar Formal Opinion 2011-1 (pro se lawyer bound by Rule 4.2)
• Wisconsin Ethics Opinion E-07-01 (duties when contacting unrepresented constituents)

See also

• WI Ethics Op. E-07-01: Contact With Constituents of a Represented Organization
• WI Ethics Op. EF-10-03: Prospective-Client Conflicts and Significantly Harmful Information

Source

• Landing page: https://www.wisbar.org/formembers/ethics/pages/formal-opinions.aspx
• Original PDF: https://www.wisbar.org/formembers/ethics/Ethics%20Opinions/EI-17-04%20Contact%20with%20Persons%20Represented%20in%20Unrelated%20Matters.pdf