February 2000

Ethics and the Law:
Communicating with Represented Persons

Students of the law and television viewers know that a lawyer generally may not communicate about the subject matter of a representation with a person who the lawyer knows is represented in the matter by another lawyer. Exceptions are made where the other lawyer authorizes the communication or the communication is otherwise authorized by law. 

This "no-contact" principle, now embodied in Rule 4.2 of Washington Rules of Professional Conduct (RPCs), attempts to balance several conflicting legal and societal values. Implementation of the rule, while often clear, demonstrates the adage that the "devil is in the details." This article looks at the rule and its predecessors and catalogues some of those devils, especially those arising when dealing with persons in organizations and in criminal law cases.

RPC 4.2 has a considerable heritage. Washington's first no-contact rule was Canon 9 of the American Bar Association's 1908 Canons of Ethics, adopted by Washington in 1917 (1917 Session Laws, Ch. 15, Sec. 20). Canon 9 stated that "A lawyer should not in any way communicate upon the subject of controversy with a party represented by counsel; much less should he undertake to negotiate or compromise the matter with him, but he should deal only with his counsel."

In 1972, Washington replaced the Canons with the Code of Professional Responsibility, based on the ABA Model Code of Professional Responsibility. The Code's no-contact rule, captioned "Communicating with One of Adverse Interest," was continued in Disciplinary Rule 7-104(A)(1): "During the course of his representation of a client a lawyer shall not: (1) 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 1985, Washington replaced the Code with the Rules of Professional Conduct (RPCs), largely based on the 1983 ABA Model Rules of Professional Conduct. The new no-contact rule, set out in the still-current version of RPC 4.2, retains the same underlying principles as its predecessor:

Rule 4.2: Communication with Person Represented by Counsel

In representing a client, a lawyer shall not communicate about the subject of the representation with a party 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 by law to do so.

Washington's RPC 4.2 is identical to ABA Model RPC 4.2 as promulgated by the ABA in 1983. In 1995, however, the ABA amended Model Rule 4.2 by replacing the word "party" with the word "person," so that the ABA version (but not the Washington version) now reads ". . .a lawyer shall not communicate about the subject of the representation with a party person . . . ." The ABA stated that the purpose of the change was to clarify that the rule applies (as the caption for both the ABA and the Washington versions indicate) to any "person" represented by counsel, not merely a litigant "party." Most commentators and jurisdictions agree with this interpretation. See ABA Center for Professional Responsibility, Annotated Model Rules of Professional Conduct (Fourth Edition, 1999), pp. 400-401 [hereafter cited as Annotated]; The American Law Institute, Restatement of the Law (Third) — The Law Governing Lawyers (Tentative Draft No. 8, March 21, 1997), Section 158 (pages 234-236) [hereafter cited as Restatement].

The no-contact rule seeks to safeguard the lawyer-client relationship and to protect the represented party/person from possible overreaching by an adverse lawyer. It is also intended to lessen the likelihood that represented persons, when dealing with opposing counsel but without the immediate protection of their own counsel, will inappropriately disclose privileged communications, client confidences or client secrets, or other information that might harm them. For a useful catalog of stated rationales, see Wright v. Group Health Hospital, 103 W.2d 192 (1984), 196-197.

RPC 4.2 only applies when the lawyer "knows" the person is represented by a lawyer. The RPCs define "know" succintly as "actual knowledge of the fact in question. A person's knowledge may be inferred from circumstances." For example, a Washington lawyer was recently admonished for continued contact with an opposing party after being repeatedly informed that the party was represented by counsel. In re Discipline of Kathleen Schmidt, Washington State Bar News (October 1998, p. 49.)

Since RPC 4.2 uses the term "know," and not the term "reasonably should know," which the RPCs define to include a duty of inquiry, ABA Formal Opinion 95-396 (July 28, 1995) concludes there is no duty on the part of a lawyer to inquire if the other person is represented in a matter. The opinion cautions, however, that "a lawyer may not avoid Rule 4.2's bar . . . simply by closing her eyes to the obvious." If the lawyer is in doubt whether the person is (still) represented by another counsel, and wants to practice proactive ethics, the lawyer would be wise simply to inquire of the (perhaps former) opposing lawyer whether the opposing client is represented and to document the response.

Where a lawyer is representing himself or herself pro se, authorities differ on whether the lawyer may communicate directly with the represented party. One side contends that the lawyer as a principal may communicate directly with an opposing person just as any non-lawyer might freely do. For example, a tenant lawyer in dispute with the landlord and contacted by the landlord's lawyer could contact the landlord directly without going through the landlord's lawyer. More authorities, however, reject this and argue that where the other person is represented, the lawyer must communicate only through the other person's counsel, or at least where that person or counsel have so directed. For example, a Washington lawyer was admonished for communicating in his own pro se representation directly with an opposing person represented by counsel. See In Re Michael E. Carroll, Washington State Bar News, (June 1998, p. 46). Similarly, Runsvold v. Idaho State Bar, 925 P.2d 1118 (1996) held that RPC 4.2 prohibited a lawyer representing himself in a divorce action from communicating directly with his represented ex-wife over her counsel's objection. A pro se lawyer would be wise to avoid the no-contact problem by always communicating through the other person's counsel. If the pro se lawyer represents another person on the same matter in addition to himself or herself, the lawyer is acting in a representational capacity and must communicate through the other person's counsel.

A lawyer representing a client opposing a class action is subject to the no-contact rule. Before the class is certified, the lawyer may, unless otherwise ordered by the court, communicate directly with potential class members, but not the named plaintiffs. Thereafter, the lawyer may contact class members only through the known class-action lawyer. If there are competing classes, care should be taken. See Annotated (p. 410) and Restatement (pp. 232-233).

Although Washington has not adopted the 1995 ABA amendment substituting "person" for "party," Washington's RPC 4.2, as that of most jurisdictions, has been read flexibly to apply to non-represented "persons," and is not limited merely to opposing "parties" in litigation. It applies to litigation (civil or administrative), negotiations and other representations. The rule also applies to represented co-parties and to non-party fact witnesses.

If a person represented by counsel contacts a lawyer not representing anyone else in a matter, seeking either a second opinion or to change counsel or to add an additional counsel, the no-contact rule does not prohibit the new lawyer from responding to such a contact. The new lawyer in effect has an independent basis for communicating with the represented person.

Where corporations or other multi-employee organizations are involved, the issue of who is considered off-limits to opposing counsel is complicated and involves conflicting policies of the right of an entity to defend itself and the right of opposing counsel to gather needed information. Washington's leading no-contact case provides some guidance as to whom is covered by the no-contact rule. Applying the predecessor to RPC 4.2, namely DR 7-104(A)(1) of the Code of Professional Responsibility, the Supreme Court held that the current employees of a hospital should be considered "parties" under that rule only if they had managing authority sufficient to give them the right to speak for and bind the corporation, and that non-managing/non-speaking employees and former employees of the corporation should not be considered parties. Wright v. Group Health Hospital, 103 Wn.2d 192, 201 (1984). Accordingly, a plaintiff's lawyer could ethically seek to communicate directly with such non-managing/non-speaking employees and former employees without the presence of the hospital's counsel. Although the Court was concerned to protect a client from being bound by statements made by managing/speaking employees without the protection of counsel, it is unclear whether the same rule would apply to a former managing/speaking employee who could no longer bind the client, but who might have extensive confidential information which the employer might still have a legitimate interest in protecting. The Court also held that the hospital could not prohibit its non-managing/non-speaking employees or former employees from communicating with adverse counsel, but that nothing required such persons to meet ex parte with adverse counsel if they did not wish to do so. 103 Wn.2d 192, 203. This is consistent with other jurisdictions. For example, Polycast Technology Corp. v. Uniroyal Inc., 129 F.R.D. 621 (1990), held that lawyers were not barred from having ex parte contacts with a former employee of the opposing party and that there was no showing that that former employee had access to privileged information.

The Washington Supreme Court in Wright declined to follow the hospital's suggestion to adopt the "flexible 'client' test extending coverage to many nonmanagerial employees" enunciated by the U.S. Supreme Court in Upjohn Co. v. United States, 449 U.S. 383 (1981). The Washington Court noted that the policies behind the attorney-client privilege rule considered in Upjohn were different from the policies behind the disciplinary rules, and that Upjohn read "client" broadly to apply the protection of attorney-client privilege to many employees. The Washington Court, on the other hand, was construing the disciplinary rules which had a policy of trying to protect the corporation so that its managing/speaking employees would not be unduly influenced by adverse counsel. The Court observed that "a corporate employee who is a 'client' under the attorney-client privilege is not necessarily a 'client' for purposes of the disciplinary rule." 103 Wn.2d 192, 202.

Further applications of the rule can be found in several Washington Supreme Court cases. For example, in Loudon v. Mhyre, 110 W.2d 675 (1988), the Court held that as a matter of public policy, defense counsel in a personal injury action may not communicate directly with the plaintiff's treating physician, even when the plaintiff has waived the physician-patient privilege, but may do so only through formal discovery methods. The Court feared that ex parte contact would disclose irrelevant privileged medical information, and that the "plaintiff's interest in avoiding such disclosure can best be protected by allowing plaintiff's counsel an opportunity to participate in physician interviews and raise appropriate objections." The Court declined, however, in Holbrook v. Weyerhaeuser, 118 Wn.2d 306 (1992), to extend its Loudon no-contact holding to workers' compensation cases. Instead, it held that defense counsel could communicate ex parte with claimants' treating physicians during administrative proceedings before the Board of Industrial Insurance Appeals. The Court based its conclusion primarily on the public/state interest in the workers' compensation system and the specific statutory waiver of physician/patient privilege as to such claims.

In In Re Firestorm 1991, 129 Wn.2d 130 (1996), the Court found that a lawyer's ex parte contact of an expert witness was a violation of CR 26(b)(5) (relating to discovery of experts), but was not an ethical violation, and concluded that no sanction was appropriate. Although the case centered on application of Civil Rule 26, the Court noted (p. 137, note 2):

No express ethical prohibition prohibits ex parte contact with an expert witness of an opposing party. ABA Comm. on Ethics and Professional Opinion, Formal Op. 378 (1993). Terry El. Nilles, Ex Parte Contacts with Expert Witnesses. Wisconsin Lawyer, Dec., at 18 (1994). The ABA opinion finds that Model Rule 3.4(c) (knowingly violating an obligation of a tribunal) may be violated by ex parte contact with an expert witness if the jurisdiction has a discovery rule based on Fed. R. Civ. P. 26(b)(4)(A). ABA Formal Op. 378.

The Court went on to conclude, however, that "Based on the plain language of the rule [CR 26(b)(5)], we hold as a general principle ex parte contact with an opposing party's expert witness is prohibited by CR 26. . . . Discovery of expert witnesses retained by a party to the litigation may only be done within the strictures of CR 26." 129 W.2d 130, 137-138.

Irrelevant Who Initiates Communication

The no-contact rule applies regardless of who initiates the communication. A represented person, not knowing of or understanding the no-contact rule, will sometimes start the communication. At other times, the lawyer may start the communication, seeking to determine whether the person is represented by counsel as to the matter at hand. In either case, if the lawyer learns that the opposing client is represented as to the matter, the lawyer must immediately terminate the communication. The lawyer would be wise after any such communication to immediately contact that person's counsel and advise him or her of the communication with that lawyer's client, and to document that contact.

Rule 4.2 covers all communications, whether oral or written. For example, a lawyer was admonished for sending to the opposing client copies of correspondence addressed to the client's counsel after being told not to do so. In re Discipline of Eugene N. Bolin, Washington State Bar News (June 1999, p. 52). Another lawyer was admonished for in-person ex parte communications with persons known to be represented by counsel. In re Gary Ackerman, Washington State Bar News (May 1999, p. 52).

Although RPC 4.2 does not by its terms prohibit doing indirectly what the lawyer cannot do directly, RPC 8.4(1) does so by providing that "It is professional misconduct for a lawyer to: (1) Violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another." Thus, a lawyer cannot escape RPC 4.2 by having his or her agents or staff make ex parte communications on his or her behalf. Generally, law enforcement personnel are not considered to be a prosecutor's staff or agents, and thus such personnel are generally not subject to RPC 4.2. (See discussion below regarding "Communication Authorized by Law.") ABA Formal Ethics Opinion 95-396 (1995) concludes that a lawyer would be ethically responsible for ex parte contacts by an investigator over whom the lawyer has direct supervisory authority if the lawyer did not make reasonable efforts to prevent such contacts, or had instructed the investigator to make them, or knowing that the investigator was going to make such contacts, failed to direct the investigator not to make them. The opinion also concludes, however, that if the lawyer has instructed the investigator not to make such contacts, but the investigator does so anyway, the lawyer may use the results of the contacts.

The rule does not prohibit opposing clients from communicating directly with one another, nor prohibit a lawyer from advising her client on the strategy to be undertaken in such direct client-to-client communications. The lawyer should not be present during such direct communications, however, nor should the lawyer in effect seek to bypass the other lawyer by scripting her client's direct conversation with an opposing client. For example, a lawyer should not be present in person or on a telephone line while her client converses on another line with the opposing client and regularly places the opposing client on hold while she consults her lawyer.

The rule only prohibits the lawyer from communicating about the subject matter as to which the opposing counsel is represented. A lawyer may communicate with the opposing client as to matters for which the opposing client is not represented by counsel. This distinction, however, can be perilous to rely on unless the representations are clearly distinct and the distinctions are documented.

If the proposed communication with a represented person is not prohibited by RPC 4.2, then that person is considered to be unrepresented by counsel as to that matter. The lawyer's conduct towards that person is then governed by other provisions of the RPCs, including RPC 4.1, prohibiting the lawyer from making false statements or material omissions; and RPC 4.3, prohibiting the lawyer from stating or implying that the lawyer is disinterested and requiring the lawyer to make reasonable efforts to correct any misunderstanding by that person of the lawyer's role in the matter.

RPC 4.2 only applies if there is a "matter." It is not clear whether this relates to timing or to the client's posture or the substantiality of the representation. In the criminal law context, using somewhat artificial distinctions, there is usually a "matter" if there has been an indictment. See Annotated (pp. 402-403).

The rule specifically permits communication with a person represented by counsel where that counsel has consented to the communication. Although the rule does not require the consent to be in writing, a lawyer would be wise to document the consent by letter to that counsel (or to the client with a copy to that counsel), or at least by a memorandum to the file. Consent by the client alone is not sufficient to satisfy RPC 4.2.

RPC 4.2 permits communication with a person known to be represented by counsel where that communication is "authorized by law." This clearly permits routine interrogations at depositions and at trial. But the words "authorized by law" also convey a host of problems, particularly in the criminal law setting, and especially when those seeking to avoid the restrictions of RPC 4.2 claim the authority to promulgate "laws" purporting to exempt themselves from complying with standards applicable to all other lawyers.

Prosecutors generally do not like RPC 4.2. The RPCs do not exempt prosecutors from RPC 4.2. Limiting a prosecutor's ability to engage in ex parte communications will likely result in fewer cases being made and some prosecutions never being brought because sufficient evidence cannot be obtained other than through ex parte communications. If rigidly applied, RPC 4.2 could limit the use of jailhouse snitches and undercover and sting operations. However, it is argued that leaving such operations solely in the hands of law-enforcement personnel, who as nonlawyers are not subject to the RPCs, would likely worsen the situation for many persons charged with crimes. In effect, by merely retaining counsel, knowledgeable criminal suspects would benefit from a windfall immunity from "routine" interrogations, while other unrepresented suspects would suffer.

The argument against applying RPC 4.2 to prosecutors is sometimes accompanied by a litany or parade of horribles that will occur if undercover or sting operations are not permitted to combat terrorists, drug dealers, child pornographers, sexual predators and so on. Federal law enforcement officials also claim that the necessity of complying with state ethics laws severely limits their ability to enforce federal laws, and that their investigations are far more complex than the work of other lawyers. Evidence is seldom provided in support of such contentions.

While there is clearly a public interest in having both federal and state criminal laws enforced, there is an even stronger public interest in preserving a very broad right to legal counsel. A cynic might well see attempts to exempt prosecutors from application of RPC 4.2 as merely attempts to delay or deny criminal suspects any access to legal counsel until after law enforcement personnel have had an opportunity to make their case against the suspect unimpeded by objections from the suspects' legal counsel.

The U.S. Department of Justice has long sought to exempt its attorneys from state lawyer ethics standards, and particularly from RPC 4.2. It has claimed that its own regulations have the force of law and thus preempt state ethics standards for its prosecutors under RPC 4.2's "authorized by law" exception. In effect, it has claimed that federal prosecutors should only be subject to ethics rules promulgated by themselves.

The Department's claims have been repeatedly rejected by most commentators, state lawyer disciplinary agencies, and by the courts. In U.S. ex rel. O'Keefe v. McDonnell Douglas Corp., 961 F. Supp. 1288 (E.D. Mo., 1997), affirmed 132 F.3d 1252, 1257 (8th Cir., 1998), the Court held that the Department lacked authority to exempt its employees from compliance with state ethics rules and struck down the regulations purporting to do so. The Department's contention that its attorneys were not subject to discipline for violation of state ethics rules was rejected in In re Doe, 801 F. Supp. 478 (D.N.M. 1992) and United States v. Ferrara, 54 F.3d 825 (D.C. Cir. 1995).

Congress has also rejected the Department's exemption claims by enacting the Citizens Protection Act of 1998 (also known as the "McDade Amendment" or the "McDade-Murtha Amendment"), set out as Section 801 of the Omnibus Consolidated and Emergency Supplemental Appropriations Bill for fiscal year 1999 (Public Law 105-277), and codified at 28 U.S.C. 530B. The Act provides that federal government lawyers are subject to state laws and rules and local federal court rules governing attorneys in each state where such attorneys engage in their duties, to the same extent and in the same manner as other attorneys in that state.

Despite passage of the Act, the Department has continued its campaign to exempt itself from the same ethical standards applicable to all other lawyers, including seeking legislation to do so. For example, in January 1999, Senator Orrin Hatch introduced a bill which would allow state ethics rules to be the controlling rules unless they would interfere with the investigation of violations of federal law" — a provision which the Department would likely interpret as, in effect, a repeal of the Act. The Department has claimed that granting state ethics authorities jurisdiction over federal prosecutors would cause significant problems for federal civil and criminal law enforcement. The problem of RPC 4.2 for the Department is that it may be less able to engage in the ex parte communications prohibited by RPC 4.2, which substantially all states, but not the Department, consider unethical.

For a more detailed discussion of these issues, see Annotated (pp. 413-415). Restatement (pp. 230, 239-243); Cramton and Udell, State Ethics Rules and Federal Prosecutors: The Controversies Over the Anti-Contact and Subpoena Rules, 53 U. Pitt. L. Rev. 291 (1992); Burke, Reconciling Professional Ethics and Prosecutorial Power: The No-Contact Rule Debate, 46 Stanford L.Rev. 1635 (1994); Little, Who Should Regulate the Ethics of Federal Prosecutors? 65 Fordham L. Rev. 355 (1996); and Salon, Prosecutors and Model Rule 4.2: An Examination of Appropriate Remedies, 12 Geo.J. Legal Ethics 393 (1999).

The WSBA has issued a number of opinions interpreting the no-contact rule. WSBA Formal Opinion 12 (1951) concluded that Canon 9 of the Code of Ethics prohibited Washington-admitted lawyers representing the Veterans Administration from directly communicating with an opposing party represented by counsel. WSBA Formal Opinion 21 (1953) concluded that Canon 9 prohibited a lawyer from giving an opposing represented client a copy of a proposed settlement agreement and reading it aloud to her in his office even though he advised her to consult her own counsel. WSBA Formal Opinion 66 (1960) concluded that Canon 9 prohibited a lawyer from sending a copy of a proposed settlement demand directly to an opposing client at the same time he sent it to the opposing lawyer, observing that "the vice in the situation lies in the fact that it tends to encourage the opposing party to deal directly with the attorney proposing the settlement." WSBA Formal Opinion 96 (1961) clarified that opinion in the context of statutory provisions for service on opposing parties and concluded that opposing counsel should be served with litigation pleadings even though statutes may permit direct service on the opposing client. WSBA Informal Opinion 86-2 provides guidance to prosecutors on interviewing represented defendants on matters unrelated to the representation, including jail-house snitches.

The possible consequences to a lawyer of violating the no-contact rule will depend on whether the lawyer knew of the representation, the severity and frequency of the violation, the consequences to others, and the jurisdiction in which the prohibited contact took place. Consequences may include disqualification of the lawyer from the representation, suppression of evidence secured from the ex parte contact, court fines and penalties, injunctions against use of improperly obtained information, and disciplinary action. For example, the Court in United States v. Hammad, 858 F.2d 834 (2d Cir 1988), cert. denied 498 U.S. 871 (1990), suppressed evidence a federal prosecutor obtained in violation of the no-contact rule.

Useful information about RPC 4.2 can be found in ABA Center for Professional Responsibility, Annotated Model Rules of Professional Conduct (Fourth Edition, 1999, pp. 397-417); ABA Committee on Professional Responsibility Formal Opinion 95-396 (1995); The American Law Institute, Restatement of the Law Third — The Law Governing Lawyers (Tentative Draft No. 8, March 21, 1997), Section 158; ABA/BNA Lawyers' Manual on Professional Responsibility, Section 71:301 et seq.; and WSBA Informal Opinion 86-2 (relating to interviews by prosecuting attorneys of represented defendants concerning matters unrelated to the representation).

Washington's no-contact rule, RPC 4.2, seeks to protect the lawyer-client relationship and safeguard client confidences and secrets. In day-to-day practice the rule is not difficult to apply. Where organizations or criminal law suspects are involved, however, conflicting values may give rise to difficult issues requiring great care by the lawyer considering engaging in communications with a represented person.