Transactions with Non-Clients · 2-8% of the exam
16.2.2Represented organizations and their constituents (Rule 4.2)
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- Rule 4.2 — Represented organizations (MR 4.2)
Why
An organization acts through its people — its directors, officers, employees, members, shareholders or other constituents (Rule 1.13(f) and (g); Chapter 9). Rule 4.2 reaches the current constituent whose relationship to the organization's lawyer, whose authority to obligate the organization, or whose imputable act or omission in connection with the matter ties them to the organization's legal position.
Plain English
Ask whether the person is a current or former constituent. For a former constituent, consent of the organization's lawyer is not required — but that answers only the organization's side: a former constituent who has their own counsel in the matter is a represented person under Rule 4.2, and that counsel's consent is required. Even in a permitted conversation the lawyer may not seek information protected by the organization's attorney-client privilege.
For current constituents, a three-prong disjunctive test applies; any one prong triggers the requirement to obtain the organization's counsel's consent, except that if the constituent has their own personal lawyer in the matter, that lawyer's consent suffices.
Rule
Rule 4.2 — Represented organizations (MR 4.2)
When an organization is the represented party, a lawyer must obtain the organization's counsel's consent before communicating with a current constituent who:
- Supervises, directs, or regularly consults with the organization's lawyer about the matter; or
- Has authority to obligate the organization with respect to the matter; or
- Has taken an act or omission in connection with the matter that may be imputed to the organization for purposes of civil or criminal liability.
The three prongs are disjunctive: satisfying any one triggers the restriction.
Whose consent: If the constituent has their own personal lawyer in the matter, that lawyer's consent suffices; the organization's counsel need not also consent.
Former constituents: Comment [7] — consent of the organization's lawyer is not required for communication with a former constituent. That settles only the organization's consent: a former constituent who is represented in the matter by their own counsel is still a represented person under Rule 4.2, and that counsel's consent is required. And even in a permitted conversation, the lawyer may not seek information protected by the organization's attorney-client privilege; asking what the former constituent disclosed to the organization's lawyers during the matter is forbidden. That privilege belongs to the organization, so the former constituent's own consent does not waive it. Comment [7] states the general limit — in communicating with a current or former constituent, a lawyer must not use methods of obtaining evidence that violate the organization's legal rights (see Rule 4.4).
Example 1
Ex. 1
Plaintiff's counsel wants to interview three people affiliated with the defendant company. Hana is a current line supervisor who participates in weekly calls with company counsel about the accident investigation: she satisfies prong one. Ivan resigned two years before the lawsuit and has no counsel of his own in the matter; as a former constituent, the consent of the organization's lawyer is not required. Jay is a current worker whose negligence in connection with the matter has been imputed to the company for civil liability: he satisfies prong three. Consent is required before contacting Hana or Jay. Counsel may not ask Ivan what he disclosed to company attorneys. Tie each of the three names to its own reason: weekly calls, a resignation, an imputed act.
Example 2
Ex. 2
Kim, plaintiff's counsel, wants to interview two affiliated individuals: one who left the defendant company eighteen months ago, and a current low-level worker whose conduct has not been imputed to the company and who has no supervisory or obligating authority. Neither interview requires consent: the first is a former constituent with no counsel of their own in the matter, so the organization's lawyer's consent is not required; the current worker satisfies none of the three prongs. However, Kim may not ask either person what they disclosed to company counsel during the relevant period; the organization's attorney-client privilege protects those communications regardless of employment status. Sit with what Kim may not ask, because that is the half both interviews share.
Trap
Tip
Questions · 2
Q 01ch16-e09
Question 1 of 2 · Rule 4.2
Attorney represented Plaintiff in a products case against a bottling company defended by outside counsel. The complaint alleges that a packer on the night line failed to inspect a batch of seals, and that the company must answer in damages for that failure. Without asking defense counsel, Attorney arranged an interview with the packer, who still works on that line. The packer supervises nobody, cannot commit the company to anything, and has never spoken with its lawyers about the case. The packer has no lawyer of her own in the matter. Is Attorney subject to discipline?
Keys 1 to 4 choose.