Communications boundaries - Communications with represented ...

Learning Outcomes

After reading this article, you will be able to identify when a lawyer is prohibited from communicating with a represented person, explain the scope and rationale of the no-contact rule, recognize key exceptions, and apply these principles to individuals and organizations. You will also be able to answer MPRE-style questions on this topic with confidence.

MPRE Syllabus

For the MPRE, you are required to understand the ethical limits on lawyer communications with represented persons. This article addresses:

• The prohibition on communications with represented persons about the subject of the representation.
• The requirement of opposing counsel’s consent for such communications.
• The application of the rule to organizations and their constituents.
• Exceptions to the no-contact rule, including communications authorized by law or court order.
• The lawyer’s responsibilities when using agents or intermediaries.
• The distinction between communications with represented and unrepresented persons.

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

1. A lawyer knows that a party is represented by counsel in a matter. May the lawyer communicate directly with that party about the subject of the representation?
   1. Yes, if the party initiates the conversation.
   2. Yes, if the lawyer does not discuss legal issues.
   3. No, unless the other lawyer consents or law authorizes it.
   4. No, unless the party is an employee of an organization.
2. Which of the following is considered a violation of the no-contact rule?
   1. A lawyer advises her client to speak directly with the opposing party.
   2. A lawyer uses a private investigator to deliver a settlement offer to a represented party.
   3. A lawyer communicates with a former employee of a represented organization.
   4. A lawyer contacts an unrepresented witness.
3. When does the no-contact rule apply to employees of a represented organization?
   1. Only to those with authority to bind the organization.
   2. Only to former employees.
   3. To current employees who supervise, direct, or regularly consult with the organization’s lawyer about the matter.
   4. To any person ever employed by the organization.
4. Which is an exception to the prohibition on communicating with a represented person?
   1. The lawyer is acting as a mediator.
   2. The communication is authorized by law or court order.
   3. The lawyer is not discussing settlement.
   4. The lawyer is using a non-lawyer intermediary.

Introduction

A lawyer’s ability to communicate with parties involved in a matter is strictly regulated when those parties are represented by counsel. The rules are designed to protect the integrity of the attorney-client relationship and prevent overreaching, interference, or exploitation by opposing counsel. Understanding when, how, and with whom a lawyer may communicate is essential for compliance with professional responsibility standards.

Key Term: No-Contact Rule
The ethical prohibition that prevents a lawyer from communicating about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the other lawyer consents or the communication is authorized by law or court order.

Scope of the No-Contact Rule

The no-contact rule applies in both civil and criminal matters. It prohibits a lawyer from communicating about the subject of the representation with any person the lawyer knows to be represented by another lawyer in the matter, unless the other lawyer gives consent or the communication is otherwise authorized.

Key Term: Represented Person
Any individual or entity who is currently represented by legal counsel in a matter, including parties to litigation and, in some cases, organizational constituents.

Consent and Knowledge Requirements

The prohibition applies only when the lawyer has actual knowledge that the person is represented in the matter. Knowledge may be inferred from the circumstances. Consent must come from the person’s lawyer, not the represented person themselves.

Communications Through Agents

A lawyer may not circumvent the rule by acting through an agent or intermediary, such as a paralegal, investigator, or another non-lawyer. The prohibition extends to any communication made at the lawyer’s direction.

Key Term: Indirect Communication
Any communication with a represented person made through an agent or intermediary, which is treated as if made directly by the lawyer for purposes of the no-contact rule.

Organizational Clients

When the represented party is an organization (such as a corporation or government agency), the no-contact rule prohibits communication with certain employees or agents of the organization:

• Those who supervise, direct, or regularly consult with the organization’s lawyer about the matter.
• Those with authority to obligate the organization regarding the matter.
• Those whose acts or omissions in connection with the matter may be imputed to the organization for civil or criminal liability.

Consent of the organization’s lawyer is required to communicate with these individuals. Communication with former employees is generally permitted, but the lawyer must not seek privileged information or use improper methods.

Exceptions to the No-Contact Rule

There are limited exceptions where communication with a represented person is allowed:

• The other lawyer consents to the communication.
• The communication is authorized by law (e.g., constitutional rights, certain government investigations).
• The communication is authorized by a court order.

Routine business communications unrelated to the subject of the representation are not prohibited.

Communications Initiated by the Represented Person

If a represented person initiates contact with a lawyer, the lawyer must still refrain from discussing the subject of the representation without the consent of the person’s lawyer. The rule applies regardless of who starts the conversation.

Parties Communicating Directly

The no-contact rule does not prohibit parties themselves from communicating directly with each other. A lawyer may advise their client regarding such communications but may not script or use the client to circumvent the rule.

Worked Example 1.1

A lawyer represents a plaintiff in a contract dispute. The defendant is represented by counsel. The lawyer calls the defendant directly to discuss settlement terms, without notifying the defendant’s lawyer. Is this permitted?

Answer:
No. The lawyer is prohibited from communicating about the subject of the representation with the defendant, who is represented by counsel, unless the defendant’s lawyer consents or the communication is authorized by law or court order.

Worked Example 1.2

An attorney represents a company in a lawsuit. The attorney wishes to interview a current employee who manages the department involved in the dispute, without the company’s counsel present. Is this allowed?

Answer:
No. The employee supervises and regularly consults with the organization’s lawyer about the matter. The attorney must obtain consent from the organization’s counsel before communicating with this employee.

Worked Example 1.3

A lawyer, representing a plaintiff, instructs a private investigator to deliver a message about settlement directly to the defendant, who is represented by counsel. Is this a violation?

Answer:
Yes. The lawyer may not use an agent to communicate indirectly with a represented person. The rule prohibits both direct and indirect communications.

Exam Warning

The no-contact rule applies even if the represented person initiates the conversation or consents to the communication. Only the person’s lawyer can authorize the discussion. Do not be misled by answer choices suggesting otherwise.

Revision Tip

Always determine whether the person is represented in the matter and whether the subject of the communication relates to that representation. When in doubt, seek consent from opposing counsel.

Key Point Checklist

This article has covered the following key knowledge points:

• The no-contact rule prohibits lawyers from communicating about the subject of the representation with represented persons without opposing counsel’s consent or legal authorization.
• The rule applies to both direct and indirect communications, including those through agents or intermediaries.
• For organizational clients, the rule covers communications with certain employees and agents.
• Exceptions include consent of the other lawyer, communications authorized by law, or court order.
• The rule applies regardless of who initiates the communication.
• Lawyers may advise their own clients about direct party-to-party communications but may not use clients to circumvent the rule.

Key Terms and Concepts

• No-Contact Rule
• Represented Person
• Indirect Communication