Lately, I’ve found myself drawn to a song that opens:
“Back when that blacktop was just a gravel road,
Back when that Walmart was just a fishin’ hole.”
If you’re anything like me, my guess is that you’ve experienced times when the first verse of the chorus – “I could use some back then right now” – was your prevailing sentiment.[1]
In that mood again today, I realized the song isn’t a bad way to set-up a prop I’ve not employed in ages: a Throwback Thursday post. So, tonight, I’m going back to August 8, 2023, and my post Don’t communicate with a represented person.
I’m sharing the post again because the no-contact rule and its contours continue to arise in inquiries. Plus, in that the post was part of the 50 Resolutions series, it most definitely qualifies as a Throwback. Not just to last August, but all the way to 1836!
Here it is.
Originally Posted on August 8, 2023
In November 2017, I posted The 50 Original Rules. It’s a recap of the history of the conduct rules that apply to lawyers.
As best as I can tell, the earliest record of guidelines for attorney conduct in the United States is David Hoffman’s 1836 publication of his Fifty Resolutions in Regard to Professional Deportment. My post includes each of Hoffman’s 50 resolutions.
Over 180 years later, it’s somewhat fascinating to me how many of Hoffman’s resolutions continue to resonate. Many are embedded in the rules and our collective professional conscience. Given my fascination, I resolved to blog about the continued relevance of Hoffman’s resolutions, taking them one at a time. So far:
- Don’t be a jerk.
- Don’t switch sides.
- Don’t overcomplicate trust accounting.
- Deliver the file
- Resolve to be a mentor
- Be diligent
- Manage expectations with candid legal advice
Today ends my four-year hiatus from this project. The motivation to get back at it comes from David Kluft, Assistant Bar Counsel in Massachusetts. Last week, David posted this to LinkedIn:
Indeed, Hoffman’s 43rd resolution is strikingly similar to V.R.Pr.C. 4.2, which reads:
- “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 the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order.”
I blog today to share thoughts on the so-called “no-contact” rule. In no particular order:
Persons or Parties? Both the text and Comment [2] make clear that the rule applies whenever a “person” is represented.[2] It surprises me how often lawyers think that the rule applies to represented “parties.” Why? Because that it applies to all represented persons is not a new concept in Vermont.[3]
How do I know the person is represented? The rule prohibits communication with a person who a lawyer “knows” is represented by counsel. Comment [8] indicates that the rule applies when “the lawyer has actual knowledge of the fact of the representation, but such actual knowledge may be inferred from the circumstances.”[4]
What if I don’t learn that the person is represented until after we’ve started communicating? Immediately stop communicating. Do not try to convince yourself that it would be rude or impolite to do so. Indeed, the Vermont Supreme Court has rejected the “I didn’t want to be perceived as rude” defense.[5]
What if the represented person initiates the communication? It doesn’t matter, immediately terminate contact. See, V.R.Pr.C. 4.2, Comment [3].[6] As stated above, don’t try to convince yourself that it would be rude or impolite to stop immediately.
But we didn’t talk about anything substantive. It doesn’t matter. Who says it doesn’t matter? The Vermont Supreme Court.[7]
No stalking horses. Comment 4 states that a “lawyer may not make a communication prohibited by this rule through the acts of another. See Rule 8.4(a).”[8]
Be wary of training a parrot. Comment [4] also states that “parties to a matter may communicate directly with each, other and a lawyer is not prohibited from advising a client concerning a communication that the client is legally entitled to make.”
With respect to advising a client about a communication that the client is entitled to make, I’ve taken the position that there’s a difference between “providing advice” and “providing a script.” Others might disagree. For now, I’m not aware of a Vermont disciplinary opinion or advisory opinion that addresses the issue. However, I agree with the position approved by the Virginia Supreme Court in Legal Ethics Opinion 1890:
- “Represented Persons May Communicate Directly With Each Other Regarding the Subject of the Representation, but the Lawyer May Not Use the Client to Circumvent Rule 4.2. Although their lawyer may advise against it, a represented party may communicate directly with a represented adversary. See Comment [4] to Rule 4.2. However, a lawyer may not use a client or a third party to circumvent Rule 4.2 by telling the client or third party what to say or “scripting” the communication with the represented adversary.”[9]
What if a represented person asks me for a second opinion? The rule applies to a lawyer who is representing a client in a matter. Thus, if someone who is represented in the matter contacts you for a second opinion and you are not already representing someone else in the matter, you may provide the second opinion without seeking consent from the person’s lawyer.[10] Indeed, by notifying the person’s lawyer that their client sought a second opinion, you arguably violate V.R.Pr.C. 1.6.
If you’re not sure, you can ask a court for permission. Here’s Comment [6]:
- “A lawyer who is uncertain whether a communication with a represented person is permissible may seek a court order. A lawyer may also seek a court order in exceptional circumstances to authorize a communication that would otherwise be prohibited by this rule, for example, where communication with a person represented by counsel is necessary to avoid reasonably certain injury.”
It’s not uncommon for lawyers to encounter a person who claims to be represented but who will not disclose their lawyer’s identity. When this happens, I think it’s safest to inform the person “I’m not authorized to communicate with you directly, please have your lawyer contact me.” Sometimes this is of no help. Rather, no lawyer reaches out, the person continues to make contact on their own, and there is a deadline that requires action on behalf of a client.
If it’s a litigation matter, Comment [6] provides an option. Another option, and one that would also be available in non-litigation situations, is this.
Again, as stated above, the rule prohibits communication with a person who a lawyer “knows” is represented by counsel, and knowledge can be inferred from the circumstances. I’d argue that, at some point, the person’s continued “I’m represented but I’m not going to tell you by who and I’m going to keep contacting you directly” morphs to a situation in which the lawyer cannot be deemed to “know” that the person is represented by counsel. Rather, the inferences to be drawn from the circumstances in which no lawyer has reached out or been identified are that no lawyer exists, and that the person is not represented by counsel.[11] Again, others might disagree with me.
What about employees of represented organizations? Comment 7 addresses who is off limits and who is fair game.
- “[7] In the case of a represented organization, this rule prohibits communications with a constituent of the organization who supervises, directs or regularly consults with the organization’s lawyer concerning the matter or has authority to obligate the organization with respect to the matter or whose act or omission in connection with the matter may be imputed to the organization for purposes of civil or criminal liability. Consent of the organization’s lawyer is not required for communication with a former constituent. If a constituent of the organization is represented in the matter by his or her own counsel, the consent by that counsel to a communication will be sufficient for purposes of this rule.”
Does the rule apply to a self-represented lawyer? In 2022, the ABA Standing Committee on Ethics and Professional Responsibility answered “yes” in Formal Opinion 502. I blogged about the opinion here. In the post, I expressed appreciation for the conclusion, but admitted to being drawn to the dissent.[12]
CC’ing clients on emails to other counsel. Regular readers know that I’ve long warned that a lawyer who copies a client on an electronic communication to another lawyer has consented to the other lawyer replying to all. Indeed, last November, I posted this blog after the ABA reached that exact conclusion. Remember, a more important issue in this situation might be whether the sending lawyer commits misconduct by exposing the client to an unnecessary risk of mistakenly replying to all.
As always, let’s be careful out there.
[1] The song is Tyler Hubbard’s Back Then Right Now.
[2] “This rule applies to communication with any person who is represented by counsel concerning the matter to which the communication relates.” V.R.Pr.C. 4.2, Cmt. [2].
[3] The rule was drafted in 1999. As drafted, the rule effectively codified this 1994 advisory opinion from the Vermont Bar Association.
[4] See also, V.R.Pr.C. 1.0(f) (“‘knowingly’, ‘known,’ or ‘knows’ denotes knowledge of the fact in question. A person’s knowledge may be inferred from the circumstances.”)
[5] In re Fink, 2022 VT 63, ¶ 18 (“Next, respondent argues that ending the call after husband’s statement “would have been both a rude and an unnatural way to conclude the conversation.” We are unpersuaded by this argument. Respondent would have been well within the confines of Rule 4.2 to express surprise at husband’s representation status, inform husband that the conversation must end due to respondent’s ethical obligations, and indicate that respondent would thereafter communicate through husband’s lawyer. Suddenly hanging up the phone without reason might be considered rude and unnatural, but respondent had both a valid reason and the inherent convenience of laying the blame for any perceived slight upon the professional conduct rules. Respondent’s stated desire to avoid rudeness simply does not outweigh his ethical obligations.”)
[6] “[3] The rule applies even though the represented person initiates or consents to the communication. A lawyer must immediately terminate communication with a person if, after commencing communication, the lawyer learns that the person is one with whom communication is not permitted by this rule.”
[7] In re Fink, 2022 VT 63, ¶ 17 (“Respondent first asserts that he did not violate Rule 4.2 because “nothing of substance related to the divorce was discussed.” However, the rule prohibits “communications with any person who is represented by counsel concerning the matter to which the communication relates.” V.R.Pr.C. 4.2 cmt. [2]. We agree with the hearing panel that Rule 4.2 does not on its face distinguish between substantive and nonsubstantive content in its prohibition of communicating with a represented party. The conduct at issue here is the communication about the divorce after respondent was told that husband wanted to talk with his lawyer, not respondent’s initial placing of the call. Respondent’s argument therefore fails.”
[8] Rule 8.4(a) is the rule that prohibits a lawyer from violating the rules through the act of another.
[9] The Minnesota Office of Lawyers Professional Responsibility articulated a similar position here.
[10] See, V.R.Pr.C. 4.2, Reporter’s Notes to the 2009 Amendment.
[11] The situation in which a person who claims to be represented by counsel but refuses to identify counsel is markedly different than the situation that arose in In re Fink, 2022 VT 63.
[12] In 1990, the former Professional Conduct Board issued its very first opinion, PCB Decision 1. The PCB admonished a self-represented lawyer after concluding that the lawyer “had improperly communicated with a represented party of adverse interest.” For no reason other than to post a picture of what I looked like in 1990, I blogged about the decision here. I pointed out that the 1990 decision was decided under the Code of Professional Responsibility. At the time, the Code made clear that the no-contact rule applied to a self-represented lawyer. In 1999, the Code was replaced by the Vermont Rules of Professional Conduct. As I blogged, unlike the old Code, the comments to current Rule 4.2 do not address whether the rule applies to a self-represented lawyer. Thus, to the extent that the PCB relied on language that was not carried over when we switched from the Code to the Rules, I wonder whether the decision retains any precedential value.