Communication with a represented person (Rule 4.2)

PROPOSED RULES OF PROFESSIONAL CONDUCT

The Rules of Professional Conduct are disciplinary rules. Few, however, arise as often in the everyday practice of law as the proscription against communication with a represented person — the so-called “no contact” rule. Current Rule 2-100 has left many a conscientious lawyer trying to determine, for example, the extent of the “subject of the representation” or exactly when it is that a non-managerial corporate employee become subject to the “no contact” rule. These are important concerns. A lawyer who guesses wrong or misinterprets the “no contact” rule may face not only a State Bar complaint, but also the risk of disqualification from a client’s continued representation. Proposed Rule 4.2 is largely a repeat of Rule 2-100, but there are both changes and comments to the proposed rule that provide some guidance to lawyers on the more vexing questions about the “no contact” rule.

Rule 2-100 contains three subparts. The first sets forth the “no contact” mandate: “(A) … a member shall not communicate directly or indirectly about the subject of the representation with a party the member knows to be represented by another lawyer in the matter,” without the other lawyer’s consent. (Emphasis added.) The second and third subparts define “party” for purposes of the rule and then establish carve-outs from the rule for (1) communications with public officers, boards, committees, etc., (2) communications by a party seeking advice or representation from an independent lawyer, and (3) “[c]ommunications otherwise authorized by law.”

Proposed Rule 4.2 repeats the three subparts of Rule 2-100 with some changes. Courts have construed Rule 2-100’s proscription against contact with a represented “party” to apply to represented persons or entities. Predictably, proposed Rule 4.2(a) replaces the term “party” with “person” — a term defined in the proposed rules (at Rule 1.0.1(g-1)) to mean “a natural person or an organization.”

Both the current and proposed “no contact” rules forbid communication when the lawyer knows the individual to be contacted is represented by counsel. The “knowledge” requirement is not developed in Rule 2-100, but courts have required actual knowledge. In the proposed rules, the term “knows” is defined to mean “actual knowledge of the fact in question” which “may be inferred from circumstances.” During the public comment phase of the rules revision process, the bar’s Office of the Chief Trial Counsel expressed concern that use of the term “knows” (as defined in the proposed rules) makes it appear that proposed Rule 4.2 allows lawyer willful blindness, recklessness or gross negligence in determining whether the person or entity is represented by counsel. The Rules Revision Commission’s written response makes clear that proposed Rule 4.2 does not permit such “willful blindness,” etc. The commission noted that actual knowledge could be inferred from the circumstances and that the case law has sanctioned the actual knowledge standard in Rule 2-100 that is carried forward into proposed Rule 4.2.

Paragraph B of Rule 2-100 refers to entity officers, directors, managing agents, and partners without distinction between current and former officers, etc. at the time of the communication. The Discussion to Rule 2-100 indicates, and courts have ruled, that Rule 2-100 applies only to current officers, etc. Rule 4.2(b)(1) and (2) carries forward this interpretation by specifying that the “no contact” mandate applies only to current officers, etc. Rule 4.2(b)(2) leaves intact the test for when an entity’s non-managerial employee or other constituent is subject to the “no contact” rule. The test remains when “the subject of the communication is any act or omission of” the employee or other constituent “in connection with the matter which may be binding upon or imputed to the organization for purposes of civil or criminal liability.”

Proposed Rule 4.2(c) adds something not found in Rule 2-100. Paragraph (C)(3) of Rule 2-100 excepts from the “no contact” rule “[c]ommunications otherwise authorized by law.” Proposed Rule 4.2(c) extends this exception to communications authorized by court order.

Proposed Rule 4.2 adds a fourth subpart: definitions of the term “managing agent” and “public official.” A “managing agent” is thus someone with “substantial discretionary authority over the decisions that determine organizational policy.” A “public official” is a governmental officer “with the comparable decision-making authority and responsibilities as the organizational constituents described in paragraph (b)(1)[,]” which references officers, directors, partners or managing agents.

The Discussion provided as guidance for Rule 2-100 is replaced by nine Comments to proposed Rule 4.2. Proposed Rule 1.0(c) specifies that the “comments are not a basis for imposing discipline[,]” but are “guidance for interpreting and practicing in compliance with the rules.”

Comment 2 to proposed Rule 4.2 broaches the issue of defining the “subject of the representation” but gives no practical help: “This rule applies to communications with any person … who is represented by counsel concerning the matter to which the communication relates.”

Comment 3 addresses the proscription against “communicating indirectly” with a represented person. It refers to the situation in which a lawyer tries to communicate through an intermediary. Comment 3 is true to case law which frowns upon lawyers sending their investigators (or clients) with a de facto script or outline for the communication with the represented person. But it also indicates that the proposed rule does not prevent represented persons from communicating with each other about the matter in which each is represented and does not “prohibit a lawyer from advising a client concerning such a communication.” This leaves it to lawyers to attempt to draw the line between using the client as an intermediary and advising the client about his or communication with the (other) represented person or entity.

The “no contact” rule has both civil and disciplinary consequences. Proposed Rule 4.2 adds some certainty over its predecessor, but also leaves much open to interpretation.

Rule 4.2 Communication with a Represented Person

(a) In representing a client, a lawyer shall not communicate directly or indirectly 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.

(b) In the case of a represented corporation, partnership, association, or other private or governmental organization, this rule prohibits communications with:

(1) A current officer, director, partner,*or managing agent of the organization; or

(2) A current employee, member, agent, or other constituent of the organization, if the subject of the communication is any act or omission of such person* in connection with the matter which may be binding upon or imputed to the organization for purposes of civil or criminal liability.

(c) This rule shall not prohibit:

(1) communications with a public official, board, committee, or body; or

(2) communications otherwise authorized by law or a court order.

(d) For purposes of this rule:

(1) “Managing agent” means an employee, member, agent, or other constituent of an organization with substantial* discretionary authority over decisions that determine organizational policy.

(2) “Public official” means a public officer of the United States government, or of a state, county, city, town, political subdivision, or other governmental organization, with the comparable decision-making authority and responsibilities as the organizational constituents described in paragraph (b)(1).

Comment

[1] This rule applies even though the represented person* initiates or consents to the communication. A lawyer must immediately terminate communication with a person* if, after commencing communication, the lawyer learns that the person* is one with whom communication is not permitted by this rule.

[2] “Subject of the representation,” “matter,” and “person” are not limited to a litigation context. This rule applies to communications with any person,* whether or not a party to a formal adjudicative proceeding, contract or negotiation, who is represented by counsel concerning the matter to which the communication relates.

[3] The prohibition against communicating “indirectly” with a person* represented by counsel in paragraph (a) is intended to address situations where a lawyer seeks to communicate with a represented person* through an intermediary such as an agent, investigator or the lawyer’s client. This rule, however, does not prevent represented persons* from communicating directly with one another with respect to the subject of the representation, nor does it prohibit a lawyer from advising a client concerning such a communication. A lawyer may also advise a client not to accept or engage in such communications. The rule also does not prohibit a lawyer who is a party to a legal matter from communicating on his or her own behalf with a represented person* in that matter.

[4] This rule does not prohibit communications with a represented person* concerning matters outside the representation. Similarly, a lawyer who knows* that a person* is being provided with limited scope representation is not prohibited from communicating with that person* with respect to matters that are outside the scope of the limited representation. (See, e.g., Cal. Rules of Court, rules 3.35 – 3.37; 5.425 (Limited Scope Representation).)

[5] This rule does not prohibit communications initiated by a represented person* seeking advice or representation from an independent lawyer of the person’s choice.

[6] If a current constituent of the organization is represented in the matter by his or her own counsel, the consent by that counsel to a communication is sufficient for purposes of this rule.

[7] This rule applies to all forms of governmental and private organizations, such as cities, counties, corporations, partnerships, limited liability companies, and unincorporated associations. When a lawyer communicates on behalf of a client with a governmental organization, or certain employees, members, agents, or other constituents of a governmental organization, however, special considerations exist as a result of the right to petition conferred by the First Amendment of the United States Constitution and Article I, section 3 of the California Constitution. Paragraph (c)(1) recognizes these special considerations by generally exempting from application of this rule communications with public boards, committees, and bodies, and with public officials as defined in paragraph (d)(2) of this rule. Communications with a governmental organization constituent who is not a public official, however, will remain subject to this rule when the lawyer knows* the governmental organization is represented in the matter and the communication with that constituent falls within paragraph (b)(2).

[8] Paragraph (c)(2) recognizes that statutory schemes, case law, and court orders may authorize communications between a lawyer and a person* that would otherwise be subject to this rule. Examples of such statutory schemes include those protecting the right of employees to organize and engage in collective bargaining, employee health and safety, and equal employment opportunity. The law also recognizes that prosecutors and other government lawyers are authorized to contact represented persons,* either directly or through investigative agents and informants, in the context of investigative activities, as limited by relevant federal and state constitutions, statutes, rules, and case law. (See, e.g., United States v. Carona (9th Cir. 2011) 630 F.3d 917; United States v. Talao (9th Cir. 2000) 222 F.3d 1133.) The rule is not intended to preclude communications with represented persons* in the course of such legitimate investigative activities as authorized by law. This rule also is not intended to preclude communications with represented persons* in the course of legitimate investigative activities engaged in, directly or indirectly, by lawyers representing persons* whom the government has accused of or is investigating for crimes, to the extent those investigative activities are authorized by law.

[9] A lawyer who communicates with a represented person* pursuant to paragraph (c) is subject to other restrictions in communicating with the person. (See, e.g. Bus. & Prof. Code, § 6106; Snider v. Superior Court (2003) 113 Cal.App.4th 1187, 1213 [7 Cal.Rptr.3d 119]; In the Matter of Dale (2005) 4 Cal. State Bar Ct. Rptr. 798.)