The No-Contact Rule

When I was a kid, Rick Springfield was all the rage. Singing Jessie’s Girl and playing Dr. Noah Drake on General Hospital will do that.

Image result for dr noah drake

Today, however,  I’m reminded of a Springfield song that I associate with the “couples skate only!” announcement at Skateland.  When it comes to professional responsibility, lawyers would be wise to treat “represented persons” as Springfield did “strangers.”

Don’t talk to them.

 

Rule 4.2 of the Vermont Rules of Professional Conduct is the “no-contact” rule.  When a lawyer is representing a client, the rule prohibits the lawyer from communicating “about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter.” There are two exceptions:

  1. the other lawyer consents to the communication; or
  2. the communication is authorized by law.

The rule’s purpose is made clear by Comment [1]:

  • “This rule contributes to the proper functioning of the legal system by protecting a person who has chosen to be represented by a lawyer in a matter against possible overreaching by other lawyers who are participating in the matter, interference by those lawyers with the client-lawyer relationship, and the uncounseled disclosure of information relating to the representation.”

Earlier this month, the Virginia Supreme Court approved Legal Ethics Opinion 1890.  The opinion addresses more than a dozen scenarios that implicate the no-contact rule.

I’ve not blogged often on Rule 4.2.  Nevertheless, the Virginia opinion reminded me that it’s not uncommon for lawyers to ask about the rule’s reach.  Drawing on questions I’ve received at CLEs and from attorneys calling with inquiries, here are a few reminders & resources.

First, the rule applies to any person known to be represented in the matter.  That is, the rule is broader than “parties” and “cases.”  Not often, but I’ve had lawyers ask, “as long as I haven’t filed yet, I can talk to her directly, right?”  Wrong.

Next, here’s one that, in my experience, most lawyers know: “the rule applies even though the represented person initiates or consents to the communication.” Comment [3].  So, if most lawyers know it, why do I mention it?

Because e-mail has a remarkable ability to make all of us do things that we know we shouldn’t do.

I’ve little doubt that nearly every single lawyer reading this post would immediately hang-up if a represented party called.  Do the same with email – don’t reply!

Moving on, the question I receive most often on the no-contact rule involves former employees of a represented organization. Comment [7] is clear: “Consent of the organization’s lawyer is not required for communication with a former constituent.”  While issued before Rule 4.2 was adopted, VBA Advisory Opinion 96-7 reached the same conclusion.

Current employees, however, are a different story.  The rule prohibits direct communication with an employee of a represented organization:

  • who supervises, directs or regularly consults with the organization’s lawyer concerning the matter or has the 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 the purposes of civil liability.

For more on current employees, check out the VBA Advisory Opinion 06-05.  It draws heavily from Baisley v. Mississquoi Cemetery Association, an opinion in which the Vermont Supreme Court analyzed the relationship between the no-contact rule and V.R.E. 502, the evidentiary rule that establishes the lawyer-client privilege.

A few last tips:

  1. The “authorized by law” exception can cause confusion.  I don’t recall it ever being raised in the context of a disciplinary complaint.  However, in VBA Advisory Opinion 2000-6, the Professional Responsibility Committee concluded that “an attorney who represents a landlord may directly contact a tenant who is represented by an attorney solely for the purpose of the service of the statutory termination of tenancy notice.”
  2. The Virginia opinion advises that the no-contact rule does not prohibit a plaintiff/claimant’s lawyer from direct communication with an insurance adjuster even after a matter has been assigned to insurance defense counsel.  The Vermont Supreme Court held otherwise here, and reaffirmed its holding here.
  3. The Virginia opinion advises that even though parties can communicate directly with each other, the no-contact rule applies to a lawyer who is self-represented. Similarly, in the first decision it ever issued, the old Professional Conduct Board concluded that the no-contact rule “applies to lawyers representing themselves” to the same extent that it applies to lawyers who are representing clients.  I shared my thoughts on the decision here.

That’s it for now.  At least until I can figure out how to incorporate these two into a post on legal ethics:

Image result for luke and laura images

 

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