Model Rule 4.2: Communication with Person Represented by Counsel

When it applies

This comes up whenever a lawyer is tempted to go around opposing counsel to talk to the opposing party directly, including settlement discussions, discovery, or informal fact-gathering, and it frequently applies to communications with employees of a represented organization. On the MPRE it is tested heavily with corporate/organizational parties and with fact patterns involving third parties like investigators or paralegals acting for the lawyer.

What the rule requires

• The prohibition applies only when the lawyer knows the other person is represented by counsel in the matter; knowledge can be inferred from the circumstances.
• The communication must relate to the subject matter of the representation; unrelated communications are not barred.
• The restriction applies to communications made personally by the lawyer and also to those the lawyer orders or causes another (such as an investigator) to make on the lawyer's behalf, per Rule 8.4 and 5.3 principles. The lawyer's own client, however, may communicate directly with the represented person, and the lawyer may advise the client about such communications.
• For a represented organization, the rule extends to certain constituents: those who supervise, direct, or regularly consult with the organization's lawyer about the matter, those who have authority to obligate the organization with respect to the matter, and anyone whose acts or omissions in connection with the matter may be imputed to the organization for civil or criminal liability.
• Consent from the other lawyer, even if only implied through conduct like facilitating the contact, removes the bar.
• A court order or specific statute authorizing the contact overrides the general prohibition.

Exceptions

• Communications authorized by law, such as certain investigative activities of government lawyers (directly or through investigative agents) before criminal or civil enforcement proceedings begin, or communications with the government by a person exercising a constitutional right.
• Communications expressly authorized by a court order.
• Parties to a matter may communicate directly with each other; the rule restricts the lawyer, not the client. But the lawyer may not communicate with a represented person even if that person initiates or consents to the contact, and must end such a contact once the lawyer learns the person is represented.
• For organizations, former employees are generally not automatically covered by the rule (though other rules like 4.4 or 4.1 may still apply to how they are approached).
• The lawyer's own client may be advised on how to communicate directly with the other side, since the rule targets the lawyer's own contact, not advice given to the client.

How the MPRE tests Model Rule 4.2

• Students forget that the rule requires actual knowledge of representation, not just a hunch, though willful blindness counts as knowledge.
• Many assume the rule bars all contact with a represented organization's employees, when only certain categories of constituents are covered (those who supervise, direct, or regularly consult with the organization's lawyer about the matter, those who can obligate the organization in the matter, or those whose acts or omissions may be imputed to it for liability).
• Test-takers often miss that a client can talk to the opposing party directly without violating the rule, only the lawyer is restricted.
• Confusing 4.2 with 4.3, which governs dealing with unrepresented persons, or with 3.4, which covers fairness to opposing party and counsel generally.