Rules of Professional Conduct

4. Transactions with Persons Other Than Clients

ER 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.

Comment

[1] This Rule does not prohibit communication with a party, or an employee or agent of a party, concerning matters outside the representation.  For example, the existence of a controversy between a government agency and a private party, or between two organizations, does not prohibit a lawyer for either from communicating with nonlawyer representatives of the other regarding a separate matter.  Also, parties to a matter may communicate directly with each other and a lawyer having independent justification for communicating with the other party is permitted to do so.  Communications authorized by the law include, for example, the right of a party to a controversy with a government agency to speak with government officials about the matter. 

[2] In the case of an organization, this Rule prohibits communications by a lawyer for one party concerning the matter in representation with persons having a managerial responsibility on behalf of the organization, and with any other person whose act or omission in connection with that matter may be imputed to the organization for purposes of civil or criminal liability or whose statement may constitute an admission on the part of the organization.  If an agent or employee of the organization is represented in the matter by counsel, the consent by that counsel to a communication will be sufficient for purposes of this Rule.  Compare ER 3.4(f). 

[3] This Rule also covers any person, whether or not a party to a formal proceeding, who is represented by counsel concerning the matter in question.

Comment [2013 Amendment]

[4] A person to whom limited-scope represenation is being provided or has been provided in accordance with ER 1.2(c) is considered to be unrepresented for purposes of this rule unless the opposing party or lawyer knows of the limited-scope representation and the identity of the lawyer providing the limited representation. With the consent of the client, a lawyer providing limited-scope representation should consider informing the opposing party or lawyer of the limited-scope represenation with instructions as to when opposing ocunsel may communicate directly with the client. Such instructions may include, for example, whom the opposing counsel should contact on specific matters, to whom and where opposing counsel should send pleadings, correspondence and other notices, and whether the lawyer performing limited-scope services is authorized to accept service on the client's behalf.