CHAPTER 2 - 2-10 COMMUNICATION WITH REPRESENTED PERSONS

• Jurisdiction: United States

2-10 Communication with Represented Persons

When representing a client, a lawyer may not communicate with a person represented by counsel in a matter unless with permission or when otherwise authorized by law.¹⁶⁵ Rule 4.2 prohibits a lawyer, while representing a client, from making unauthorized contact with a represented party with regard to the subject matter of the representation without consent of the party's lawyer.¹⁶⁶ The purpose of this rule "is to preserve the integrity of the lawyer-client relationship by protecting the represented party from the superior knowledge and skill of the opposing lawyer. The rule is designed to prevent situations in which a represented party may be taken advantage of by opposing counsel.¹⁶⁷ To determine whether the contact was proper, a lawyer must determine (1) was an attorney representing a client when he made contact with the represented party, (2) was the party contacted "represented," (3) was he a "party" as defined by the rule, and (4) was the contact unauthorized?

For the purpose of determining the first two issues, the existence of an attorney-client relationship is judged by the client's reasonable expectations and understandings.¹⁶⁸ Not every casual communication or discussion creates an attorney-client relationship. For instance, the commentary to Rule 1.18 provides that a person who transmits information unilaterally to a lawyer, without any reasonable expectation that the lawyer is willing to discuss the possibility of forming a client-lawyer relationship, is not a "prospective client" for the purposes of the ethics rules. Contact with an attorney of a casual nature or with regard to matters tangential to a representation may not be sufficient to create an attorney-client relationship.¹⁶⁹

With regard to the question of whether the contacted person is a party, Connecticut's interpretation of Rule 4.2 is that "party" means "person." Rule 4.2 applies, by its terms, to any "party" and "party" may include a witness and not just a party to the proceeding. Indeed, Connecticut's Rule 4.2 commentary, not found in some other states' rules, reads as follows:

This Rule also covers any person, whether or not a party to a formal proceeding, who is represented by counsel concerning the matter in question.¹⁷⁰

Connecticut General Statutes 1-2z, our statutory "plain meaning rule," provides that the meaning of a statute (and by extension a court rule) "shall, in the first instance, be ascertained from the text of the statute itself . . . [and] . . . if, after examining such text . . . the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered."

Here, the meaning of "party" under Rule 4.2 is plain and unambiguous. Many jurisdictions recognize that the term "party" is not limited to the named plaintiff or defendant in a pending lawsuit. Other states, even though lacking the provision of our commentary that "party" means "person," have reached the same conclusion.¹⁷¹

Rule 4.2 is the modern iteration of Disciplinary Rule 7-104(A)(1) of the American Bar Association's Code of Professional Responsibility. As indicated by the American Bar Association's "code comparison" for Rule 4.2, this rule is "substantially identical" to former DR 7-104(A)(1). Thus, discussion by other courts and ethics commissions regarding application of former DR 7-1104(A)(1) is relevant and helpful in analyzing Rule 4.2 in the instant situation. DR 7-104(A)(1) provides:

During the course of his representation of a client a lawyer shall not communicate or cause another to communicate on the subject of the representation with a party he knows to be represented by a lawyer in that matter unless he has the prior consent of the lawyer representing such other party or is authorized by law to do so.

In Monceret v. Board of Professional Responsibility, the Supreme Court of Tennessee determined that the term "party" used in DR 7-104(A)(1) is not limited to the named plaintiff or defendant in a lawsuit and may also include a witness who is represented by counsel.¹⁷² The court found that the Rule prohibits communication "on the subject of representation" with a party that is represented by a lawyer "in that matter." It also held that the protection of the Rule cannot be waived by the party but only by the party's lawyer. The Monceret court affirmed an attorney disciplinary action against a lawyer who deposed a witness in connection with the subject matter of the lawsuit outside her lawyer's presence. The court rejected attorney Monceret's argument that the witness waived her right to have counsel present by agreeing to go forward with the deposition. Instead, the court held that the Rule specifically requires the consent of the party's lawyer, and there is no indication that the party alone may waive the protections of the Rule.

Other jurisdictions follow the same reasoning that the rule is not waived simply because the represented person initiates contact or is otherwise willing to communicate.¹⁷³ Similarly, the Supreme Court of Vermont addressed the meaning of the word "party" as not restricted to named parties in a lawsuit. Insurance companies are considered "parties" even though they are not the plaintiff or defendant in a lawsuit.¹⁷⁴ Likewise, a New York federal court has concluded that the Rule applies to persons retained to handle real estate transactions, administer estates for an executor, seek legislative relief, or any other of the myriad tasks for which lawyers are employed.¹⁷⁵ The court determined that the essential purpose of the Rule is to avoid misunderstandings, unfairness or overreaching when a skilled lawyer speaks to a layperson, and to preserve the collegiality that must exist among members of the bar, and cannot if lawyers talk to another's client behind the lawyer's back.

Additionally, in Iowa Supreme Court Attorney Disciplinary Board v. Box, the Supreme Court of Iowa held that the term "party" does not apply solely to participant in formal adversary proceeding such as litigation, but also to participant in any transaction in which contacted party is represented by an attorney.¹⁷⁶ Rule 4.2 of the Iowa Rules of Professional Conduct replaces the term "party" with "person," noting that the Rule is intended to restrict communications by a lawyer with a "person" known to be represented by counsel. Following the same rationale, in a recent case, the Supreme Court of Ohio construed "party" to encompass defendant's mother and held that conduct of prosecuting attorney and chief assistant prosecuting attorney in conducting plea negotiation with defendant through defendant's mother and without the participation of defendant's counsel violated the Rule.¹⁷⁷

The Maryland Court of Appeals has construed the term "party" to encompass a witness represented by counsel. The court disbarred a criminal defense attorney who met with the chief witness against his client in a murder prosecution (without the witness' attorney present) and persuaded that witness (then a cooperating co-defendant who had pleaded guilty in a plea agreement) not to cooperate with the prosecution, subsequently representing him.¹⁷⁸ After a protective order was obtained to keep the attorney from meeting with the witness, he nonetheless met with him again. The Maryland court concluded that "[t]he Rule [against contacting witnesses known to have counsel without counsel present] protects parties from contacts that are well meaning but misguided as well as those that are intentionally improper, and is designed to prevent 'a person from being deprived of the advice of retained counsel by bypassing retained counsel.' . . . Tampering with the witness and violating court orders are acts that strike at the very object and purpose for which the courts are established."¹⁷⁹

Contra to the above, some courts have held that a potential witness is not considered a "party," holding that DR 7-104(A)(1) does not prohibit an attorney from communicating on the subject of a criminal proceeding, which he is engaged in the defense or prosecution of, with a witness who is not a suspect, defendant or potential defendant in that proceeding whom he knows to be represented by counsel.¹⁸⁰ In Kabir, the court found that expected witness in criminal proceeding was not adverse party, for purpose of disciplinary rule that governed communications with represented and unrepresented persons, where there was no criminal charge pending against witness, and no indication that charge was contemplated by government.¹⁸¹

In criminal cases where either the state or the defense attorney makes contact with a witness,¹⁸² or in civil cases where an attorney wishes to contact present or former corporate employees, the rule comes into play.

In the criminal context, the confusion has revolved around two issues—whether a state's attorney, when prosecuting a case, is acting in a representative capacity and when a defense attorney, contacting a victim, is making impermissible contact with a...