Think Twice About Contacts with Another Lawyer's Client

Article by William W. Taylor III and Norman L. Eisen

Lawyers often do not think about the rule against contacts with represented persons. Yet mistakes can be serious.

Allegations about such contacts result in disciplinary proceedings. Courts can order the production of all notes and memoranda by a lawyer concerning a particular contact. Evidence obtained as a result of the contact may be kept out at trial. Counsel may be disqualified.

The lawyer who is aware of the details of the rule governing contacts with represented persons will not miss the opportunity to use the rule against the other side ó and to avoid falling victim to the rule.

Typical Problems Facing Corporate Counsel

Your company has a dispute with another company. A senior official of the other company, who is a friend of yours, starts to talk with you about the dispute. May you discuss the matter with your non-lawyer friend?

Your company is under investigation by a grand jury. You are told that prosecutors have been contacting employees at home and questioning them about matters related to the case. Is the government allowed to do this?

Your company is suing another company. A disgruntled ex-employee of the other company calls you and offers juicy testimony. Can you listen?

General Principles

ABA Model Rule 4.2 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 by law to do so." In jurisdictions following the ABA Model Code of Professional Responsibility, essentially the same rule is in DR 7-104(A)(1). If a corporation is represented by an attorney in a matter, corporate employees who meet certain characteristics are considered "represented persons" and are off limits to opposing counsel. See Orlowski v. Dominick's Finer Foods, Inc., 937 F. Supp. 723 (N.D. Ill. 1996). The employees who may not be contacted are as follows:

Employees who have "managerial responsibility" in the organization.

Employees whose acts or omissions relating to the matter in litigation may be imputed to the organization for purposes of liability.

Employees whose statements may constitute admissions on the part of the organization.

Thus, in the first example above, Rule 4.2 would likely prohibit an informal conversation with a senior official of your adversary. See Carter-Herman v....