Let's talk: critical aspects of the anti-contact rule for lawyers.

• Author: Richmond, Douglas R.

1. Introduction

   Few issues in litigation are as contentious as lawyers' allegedly improper attempts at ex parte communications with parties or people so closely identified with parties that they may be considered off limits to informal discovery efforts. This is not a one-sided issue. In personal injury litigation, for example, plaintiffs' lawyers strenuously resist attempts by defense lawyers to communicate ex parte with treating physicians. On the other side of the coin, defense lawyers representing organizations often bristle when plaintiffs' lawyers attempt to speak with current or former employees outside of defense counsel's presence. Regardless of side, lawyers' attempts at ex parte communications with opposing expert witnesses are sure to provoke accusations of impropriety. If a lawyer's ex parte communications are found to be improper, the consequences can be substantial. In addition to professional discipline, lawyers may be disqualified from further participation in the cases in which the communications occurred and they may face monetary sanctions. Other penalties, such as the exclusion of improperly obtained evidence, may severely impair representations and lead to a host of undesirable consequences.

   There is a notable volume of case law on the professional responsibility ramifications of ex parte communications. Yet many cases provide little or no guidance to lawyers with respect to the limits of acceptable conduct, and some key areas of the law are incompletely understood or simply unsettled. This article examines several areas of recurring importance to trial lawyers insofar as ex parte communications go, including limits on communications with current and former employees of organizations; in-house counsel; treating physicians; and opposing expert witnesses. In doing so, it discusses applicable ethics rules as well as other legal principles bearing on these issues.

2. Applicable Rules of Professional Conduct

   The American Bar Association's ("ABA') Model Rules of Professional Conduct govern lawyers' conduct in the overwhelming majority of jurisdictions. Model Rule 4.2, commonly referred to as the "anti-contact rule," (1) addresses lawyers' communications with persons who are represented by counsel. The role provides:

   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. (2) At the outset, Rule 4.2 plainly requires that the target lawyer be representing a client for a communication to be improper. (3) A lawyer acting pro se is "representing a client" for purposes of the rule. (4) As for knowing whether a person is represented by another lawyer, that is easily established where the other lawyer has made herself known by filing a pleading, calling to announce her representation, or writing to identify herself and her role. (5) Such clarity is not required to find a violation, however, because a lawyer's knowledge can always be inferred from the circumstances. Lawyers cannot avoid acquiring knowledge by turning a blind eye to the obvious. That said, the requirement is clearly one of actual knowledge. Lawyers are not required to speculate about a person's representation--nor does mere suspicion about a person's representation determine their obligations. (6) For example, a person's statement that she should speak with someone else--such as a workplace supervisor--before speaking with a lawyer, does not support the conclusion that the lawyer knew of the person's representation. (7) The fact that a lawyer should have known that a person was represented in a matter will not support a Rule 4.2 violation. (8)

   Questions occasionally surface about the existence or scope of a "matter." (9) This is most common where litigation is contemplated but has not been initiated, and lawyers for the putative parties are gathering information in preparation for it, or where a person is involved in several enterprises or projects with legal aspects. Unfortunately, this is not an area that lends itself to uniform rules. Determinations of whether a matter exists, what matters are encompassed within a representation, and the scope and contours of matters, all depend on the circumstances. (10)

   Of course, Rule 4.2 permits ex parte communications with the consent of the lawyer for the target person. It is common for more than one lawyer to be involved in a representation. For example, a party may have local counsel and lead or national counsel. An employee may have her own counsel and may also be represented by lawyers for her organization. An insured may have personal counsel in addition to defense counsel engaged by the insurer. In such cases, a lawyer wishing to have ex parte communication with a represented person need only obtain the consent of one of the lawyers for that person. The burden is on the person's lawyers to decide among themselves who should be able to consent to ex parte communications with their mutual client, or whether such consent should ever be given.

   It is important to understand how Rule 4.2 applies to organizational litigants. Because an organization functions only through people, the question is which people affiliated with it hold a position or play a role sufficient to take on its attributes. Employees within this group are often referred to as members of the organization's "control group" or are said to be the organization's "alter egos." These shorthand descriptions come from various cases applying differing standards and are therefore imperfect, but regardless of how they are described for ease of reference, such employees are presumptively represented by counsel for the organization. (11) Employees who are not within this constituent group are available for ex parte communications unless they are separately represented. (12)

   Courts typically look to the comments to Rule 4.2 for guidance when deciding which employees are off limits. For years, the commentary to the rule provided:

   In the case of an organization, this rule prohibits communications by a lawyer for another person or entity concerning the matter in representation with persons having a [1] managerial responsibility on behalf of the organization, and [2] with any other person whose act or omission in connection with that matter may be imputed to the organization for purposes of civil or criminal liability or [3] whose statement may constitute an admission on the part of the organization. (13) The commentary to Model Rule 4.2 was significantly revised in 2002 as part of the ABA's Ethics 2000 initiative, and Comment 7 to the rule now provides:

   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. (14) A few jurisdictions have departed from the foregoing approach and adopted the socalled "managing-speaking agent test." (15) Under this test, communication is prohibited with employees who have "'speaking authority' for the corporation," meaning those employees "who 'have managing authority sufficient to give them the right to speak for, and bind, the corporation.'" (16)

   If lawyers for an organization are concerned about ex parte communications with otherwise unprotected employees, their remedy is to ask these employees not to voluntarily speak with opposing counsel outside their presence. (17) While this option is generally permissible under ethics rules, it may not be available in governmental or regulatory actions, or in criminal cases, where the request might constitute obstruction of justice. Lawyers for an organization may not instruct opposing counsel not to communicate with employees unless they represent the employees in the matter. (18)

   In many cases, lawyers want to interview former employees outside the presence of the organization's lawyers. This is often a contentious issue, but it is settled that Rule 4.2 generally permits ex parte communications with former employees. (19) That was true before the 2002 amendments to Rule 4.2, and it certainly is clear afterwards by virtue of the new commentary to the rule. (20) This freedom does have reasonable limits, however. For example, an attorney cannot communicate ex parte with former employees who have their own counsel in a matter, who had managerial responsibility in the matter being litigated, (21) who have an on-going relationship with the organization in relation to the litigation, (22) or whose alleged acts or omissions gave rise to the litigation. (23) Courts generally hold that Rule 4.2 prohibits attorneys from asking former employees about privileged information. (24)

   Lawyers who are uncertain whether intended ex parte communications are permissible may seek a judicial declaration. (25) The practical problem with this approach, of course, is that seeking a court order will alert the other side to the lawyer's intent. On the other hand, the certainty to be gained from the court's order granting permission may outweigh the loss of tactical advantage accompanying secrecy.

   Several final points about Rule 4.2 bear mention. First, the rule does not protect a person's right to counsel; it protects counsel's right to participate in any communication between her client and opposing counsel. (26) The right to invoke Rule 4.2 thus belongs to the lawyer; only the lawyer can approve ex parte communications with her client or waive the right to be present during them--the client cannot consent to ex parte contact. (27) Second, while parties are free to communicate directly, and a...