§9.4 - The "No Contact" Rule

• Jurisdiction: Washington

§9.4 THE "NO CONTACT" RULE

RPC 4.2 governs communications with represented persons. The "no contact" rule is designed to protect clients by channeling most communications through counsel for each side:

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.

RPC 4.2.

Although RPC 4.2 is simple on its face, it can be difficult in application. At the same time, it involves situations that civil litigators encounter frequently and where they risk sanctions for "guessing wrong."

This section first surveys the elements of the "no contact" rule and its exceptions, then surveys how the rule applies in the corporate context, and concludes with a discussion of the remedies available for violations. As of this writing, "[a] person who is assisted by an LLLT is not represented by a lawyer for purposes of this Rule ... [and] ... [t]herefore, a lawyer may communicate directly with a person who is assisted by an LLLT." RPC 4.2 cmt. 12; see also ABA Comm. on Ethics & Prof'l Responsibility, Formal Op. 472 (2015) (discussing the application of the rule to persons receiving limited-scope legal services).

(1) The elements

The "no contact" rule has four primary elements: (1) a lawyer; (2) a communication; (3) about the subject of the representation; (4) with a party the lawyer knows to be represented.

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A Lawyer

The "lawyer" part is easy (and also includes lawyers acting pro se under In re Disiplinary Proceeding Against Haley, 156 Wn.2d 324, 333-39, 126 P.3d 1262 (2006)). But what about people who work for the lawyer—such as paralegals, secretaries, and investigators? And what about our own clients? Although RPC 4.2 doesn't specifically mention communications channeled through others, the WSBA concluded in WSBA Advisory Op. 2015-02 (2015) that a lawyer cannot use others as a conduit to circumvent the rule. In doing so, Advisory Opinion 2015-02 relies on RPC 8.4(a), which prohibits a lawyer from violating the rules "through the acts of another." RPC 8.4 cmt. 1 makes that same point. RPC 4.2 cmt. 4 notes that clients are not prohibited from contacts with each other during a lawsuit and, in fact, often continue to deal with each other on many fronts while disputes are underway. At least as a matter of risk management pending further clarification of Washington's rule, a lawyer should generally not "coach" a client for an "end run" around the other side's lawyer. Cf. ABA Comm. on Ethics & Prof'l Responsibility, Formal Op. 11-461 at 4 (2011) ("This Committee believes that, without violating Rules 4.2 or 8.4(a), a lawyer may give substantial assistance to a client regarding a substantive communication with a represented adversary.").

Communication. "Communicate" is not defined specifically in the rule. The safest course, though, is to read this term broadly to include communications that are either oral—both in-person and via telephone—or written—both paper and electronic.

Practice Tip: Unless the lawyer for a represented person has given permission for direct contact with the lawyer's client, the lawyer's client should not be copied on a communication to the lawyer involved. Lawyers should take special care in this regard when using the "reply all" function in email or the equivalent.

Subject of the representation. RPC 4.2 does not prohibit all communications with the other side. Rather, it prohibits communications "about the subject of the representation" where the party is represented in "the matter." See RPC 4.2 cmt. 4. In a litigation setting, the "subject of the representation" will typically mirror the issues in the lawsuit as reflected in the pleadings or positions that the parties have otherwise staked out. For example, asking an...