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Transactions with Non-Clients · 2-8% of the exam

16.2.1Direct communication with a represented person (Rule 4.2)

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  • Rule 4.2 — Communication with represented persons (MR 4.2)

Why

When a person retains a lawyer, allowing opposing counsel to bypass that choice would undermine the purpose of having counsel. Rule 4.2 closes that route.

Plain English

While you are representing a client, if you know the other person has a lawyer in the matter, you must communicate through that lawyer unless one of three things releases you:

  1. that lawyer's consent,
  2. authorization by law, or
  3. a court order.

The represented person can't waive the restriction, and the rule covers only communication about the subject of the representation.

Rule

Rule 4.2 — Communication with represented persons (MR 4.2)

In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless:

  1. The other lawyer gives consent;
  2. The communication is authorized by law; or
  3. A court order permits it.

Additional elements:

  • "Knows" = actual knowledge, inferred from circumstances; suspicion alone is insufficient — but a lawyer cannot avoid knowledge by closing her eyes to the obvious, and deliberate ignorance is treated as knowledge.
  • Subject matter limited: Only communication about the subject of the representation is restricted; unrelated contact is not.
  • Represented person's consent insufficient: Only the other lawyer's consent, law, or court order releases the prohibition.
  • Client-to-client contact: A lawyer may advise their own client concerning a communication the client is legally entitled to make; Rule 4.2 governs lawyers, not parties. But a lawyer may not accomplish a prohibited communication through another person — sending an investigator to do what the lawyer may not do violates Rule 8.4(a).
  • Second opinion — outside Rule 4.2 (cmt [4]): A lawyer who is not otherwise representing a client in the matter may communicate with a represented person who is seeking that lawyer's advice or replacement counsel. This is not a fourth release route: the rule's opening words, "in representing a client," are not met, so Rule 4.2 never reaches that lawyer.
  • Pro se lawyers (cmt [10]): Rule 4.2 applies only when a lawyer is representing a client, and a lawyer who is a pro se party in a matter is representing themselves and is therefore representing a client. The rule's constraints apply to that lawyer's communications with persons the lawyer knows to be represented in the matter, so a self-representing lawyer must route contact through opposing counsel.
  • Mid-conversation discovery: Continuing after learning of the representation is the violation; starting the conversation is not.

Named doctrine — Lawyers only (Rule 4.2). The anti-contact rule binds the lawyer, not the client. Parties to a matter may communicate directly with each other; nothing in Rule 4.2 prevents that contact, and a lawyer is not prohibited from advising a client concerning a communication the client is legally entitled to make. What the lawyer may not do is conduct that communication personally on the subject of the representation without the other lawyer's consent, authorization by law, or a court order — or accomplish a prohibited communication through the acts of another (Rule 8.4(a)).

Example 1

Ex. 1

Dan, defense counsel, calls Elena at home before a deposition. Farid has filed a notice of appearance as Elena's attorney. Three minutes in, Elena mentions that Farid handles the case. Dan continues asking substantive questions for two more minutes. The first three minutes are not a violation: Dan lacked actual knowledge. Continuing after Elena's disclosure violates Rule 4.2. Elena's willingness to keep talking is irrelevant; only Farid's consent, authorization by law, or a court order could authorize continued contact on the subject of the litigation. Clock Dan's call from Elena's disclosure, not from the moment he dialed.

Example 2

Ex. 2

Gina represents a defendant in contract litigation. The plaintiff, whom Gina knows is represented by counsel, emails Gina directly and asks to negotiate settlement without lawyers. Gina responds with a substantive settlement proposal. Even though the plaintiff initiated the contact, Gina's response violates Rule 4.2. A represented person can't unlock the prohibition; only the other lawyer's consent, authorization by law, or a court order could authorize direct contact on the subject of the litigation. Turn Gina's facts around — the plaintiff can invite the conversation, and still not permit it.

Trap

Tip

Questions · 3

Q 01ch16-e06

Question 1 of 3 · Rule 4.2

Attorney represented Employer in a suit filed by a former shipping clerk over an unpaid bonus. Attorney telephoned Plaintiff at home to arrange a walk-through of the loading dock. Four minutes into the call, Plaintiff mentioned having hired a lawyer for the case the previous week. Attorney said only a few scheduling questions were left and kept the conversation going for another six minutes, most of it about how the bonus was calculated and who had approved it. Plaintiff seemed glad to talk and never asked to stop. Is Attorney subject to discipline?

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16.2.1 Direct communication with a represented person (Rule 4.2) · Chapter 16 · Open Bar Review