lawyer prohibited from communicating with party who is represented

It provides that “a lawyer shall not communicate about the subject of a representation with a party” who the lawyer “knows to be represented by another lawyer in the matter” unless the lawyer has the consent of the other lawyer or the contact is “authorized to do so by law.” NYRPC Rule 4.2 (a).

Full Answer

Does the rule prohibit communication with a represented person?

[4] This Rule does not prohibit communication with a represented person, or an employee or agent of such a person, concerning matters outside the representation.

Can a lawyer communicate with the represented party about other matters?

The Rule applies not only to parties to pending litigation and administrative proceedings, but also to represented parties to any pending transaction or negotiation. 3 Question No. 4: May the lawyer communicate with the represented party about other matters? Answer: Yes.

When can a lawyer communicate with a nonparty employee of an organization?

(b) During the course of representing a client, a lawyer may communicate about the subject of the representation with a nonparty employee of an organization without obtaining the consent of that organization’s lawyer.

Can a lawyer represent a private party in a government controversy?

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.

Can represented parties communicate?

California Rule of Professional Conduct 2-100(A) prohibits a lawyer from communicating about a matter with a party known to be represented by a lawyer without the prior consent of that lawyer. Rule 2-100 defines “party” broadly.

Can represented clients talk to each other?

(A) While representing a client, 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, unless the member has the consent of the other lawyer.

Can I communicate with opposing counsel?

Parties to a matter may communicate directly with each other, and a lawyer is not prohibited from advising a client concerning a communication that the client is legally entitled to make.

What is the no contact rule in law?

According to Charles W. Wolfram's “Modern Legal Ethics,” the no contact rule, as a general proposition, prohibits a lawyer who is representing a client from contacting a party known to be represented by another party. The no contact rule first found its way into the American Bar Association's canons of ethics in 1908.

Can a client contact opposing client?

Lawyers are not allowed to communicate directly with another lawyer's client except in very limited circumstances.

Do lawyers have to talk to each other?

R. Prof. Conduct 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 to do so by law or a court order.

Are communications between opposing counsel confidential?

Evidence Code 954 is the California statute that makes communications between attorneys and their clients privileged and confidential.

Can two represented parties talk to each other?

Rule 2-100 of the California Rules of Professional Conduct states that while representing a client, 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, unless the member has the consent of the ...

What to do when your lawyer stops communicating with you?

If you have called your attorney, left messages, sent emails, and you still haven't heard a response, the best course of action is to send a certified letter to his or her office questioning the failure to communicate and informing them that you are prepared to find a new lawyer if the situation does not improve.

Can a lawyer speak against their client?

The attorney-client privilege is, strictly speaking, a rule of evidence. It prevents lawyers from testifying about, and from being forced to testify about, their clients' statements. Independent of that privilege, lawyers also owe their clients a duty of confidentiality.

What is the definition of no contact?

*“No-contact” means that a defendant is not to call, write, have a third party contact, or themselves physically contact the victim or any other party the Judge orders the defendant have “no-contact” with.

Can a paralegal communicate with an opposing party?

Paralegals handle a large range of work delegated to them by an attorney. One of the most important duties of a paralegal is communicating with opposing counsel. In any given case, there can be hundreds to tens of thousands of pages of documents to review and exchange with opposing counsel.

What is the rule of not communicating?

The Rule refers to "communicate", not "contact.". The lawyer has the obligation to not participate in the communication initiated by a represented party unless and until the party's attorney consents. 6. Question No. 7: May the lawyer communicate with a represented co-party (as opposed to an adverse party) in a lawsuit without the consent ...

What are the exceptions to SCR 173?

Answer: There are several categories of exceptions that derive from SCR 173 (MR 3.4): 1. During the communication, the lawyer may not counsel or assist the witness to testify falsely; 24. 2. During the communication, the lawyer may not offer an inducement to a witness that is prohibited by law; 25. 3.

Is post trial communication allowed?

Answer: This is allowed when permitted by law. "Permitted by law" has been interpreted to mean that post-trial communication with discharged jurors is permitted, except when statute, local court rule, or an order from the judge presiding in the case prohibits it. ENDNOTES.

Can a lawyer communicate with a former employer without their consent?

Answer: The general rule is that they are no longer protected and the lawyer may communicate with them without the consent of their former employer's attorney — as long as they are not in possession of attorney/client privileged information or work product related to the case or matter.

Can a lawyer communicate with a party?

Answer: Yes. The lawyer may communicate with a represented party about any matter outside the subject of the representation — social or otherwise — as long as another attorney on the subject does not represent the party. 4.

Can a lawyer ask a client to refrain from giving information to another party?

During the communication, the lawyer may not request a person other than a client to refrain from voluntarily giving relevant information to another party unless: (a) The person is a relative or an employee or other agent of a client; and.

Can a lawyer script a communication?

Answer: No, but if the lawyer scripts the content of the communication (as opposed to conferring about the strategy of the communication), rather than letting the content of the communication originate from the client, it may be held to be a prohibited Rule 182 contact. 5.

What is the law of contacts with represented persons?

For purposes of the rule on contacts with represented persons, the term "law" may include: 1) a specific statute; 2) a court order; or 3) case law. Several jurisdictions have established by case law a law enforcement investigatory exception to the contact rule in limited circumstances. Department attorneys should be aware under what circumstances ...

When should department attorneys consider the following issues?

Department attorneys should consider the following issues when they analyze the relevant rule of professional conduct regarding communications with represented persons. Whether the Department attorney knows that a person (a defendant, a target, a subject or a witness) is represented by a lawyer. The contact rule only applies where ...

What should department attorneys be guided by?

Department attorneys should be guided by the relevant state's or federal district court's rule and interpretations of that rule and should not rely exclusively on the ABA Model Rule and its interpretation in determining what is appropriate conduct, unless directed to do so by the relevant rules of professional conduct.

What is the ABA model rule of professional conduct?

Rule 4.2 of the American Bar Association's Model Rules of Professional Conduct 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 by law or a court order." (2002). Department attorneys should be aware that Comment 5 to Model Rule 4.2 provides that " [t]he fact that a communication does not violate a state or federal constitutional right is insufficient to establish that the communication is permissible under this Rule." Although the rule may vary from state to state, each state has adopted a rule of professional conduct that governs communications with represented persons. Department attorneys should be guided by the relevant state's or federal district court's rule and interpretations of that rule and should not rely exclusively on the ABA Model Rule and its interpretation in determining what is appropriate conduct, unless directed to do so by the relevant rules of professional conduct. Nonetheless, as a general matter, it may be useful to review ABA Committee on Ethics and Professional Responsibility Formal Opinion 95-396, "Communications with Represented Persons" (July 24, 1995), and the Annotated Model Rules of Professional Conduct published by the ABA Center for Professional Responsibility.

What is the comment 5 to Model Rule 4.2?

Department attorneys should be aware that Comment 5 to Model Rule 4.2 provides that " [t]he fact that a communication does not violate a state or federal constitutional right is insufficient to establish that the communication is permissible under this Rule.". Although the rule may vary from state to state, each state has adopted a rule ...

What is contact rule?

The contact rule only governs communications with represented persons about the subject matter for which they are represented.

What does the contact rule require?

Whether the contact rule requires that a formal proceeding be pending or whether it applies before the initiation of a formal proceeding. Most states apply the contact rule to a represented person whether or not a complaint, indictment, or other charging instrument has been filed. Whether a contact constitutes a communication.

When does a lawyer have to terminate 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. [9] This rule does not apply to the situation in which a lawyer contacts employees of an organization for the purpose of obtaining information generally ...

What is the proviso to Rule 4.2?

The “authorized by law” proviso to Rule 4.2 (a) is intended to permit government conduct that is valid under this law. The proviso is not intended to freeze any particular substantive law, but is meant to accommodate substantive law as it may develop over time.

Can a lawyer communicate with another lawyer?

(a) During the course of representing a client, a lawyer shall not communicate or cause another to communicate about the subject of the representation with a person known to be represented by another lawyer in the matter, unless the lawyer has the prior consent of the lawyer representing such other person or is authorized by law or a court order to do so.

Can an employee of an organization make binding decisions regarding representation?

If an agent or employee of the organization with authority to make binding decisions regarding the representation is represented in the matter by separate counsel, the consent by that agent’s or employee’s counsel to a communication will be sufficient for purposes of this rule. [4] The rule does not prohibit a lawyer from communicating ...

Can a lawyer obtain information that is otherwise protected?

In making such contact, however, the lawyer may not seek to obtain information that is otherwise protected. [7] This rule also does not preclude communication with a represented person who is seeking advice from a lawyer who is not otherwise representing a client in the matter.

Can a lawyer advise a client?

In addition, a lawyer is not prohibited from ad vising a client concerning a communication that the client is legally entitled to make, provided that the client communication is not solely for the purpose of evading restrictions imposed on the lawyer by this rule.

Do you need consent for in-house counsel?

If individual in-house counsel is represented separately from the organization, however, consent of that individual’s personal counsel is required before communicating with that individual in-house counsel. [6] Consent of the organization’s lawyer is not required where a lawyer seeks to communicate with a former constituent of an organization.

What is NYRPC Rule 4.2?

Rule 4.2 prohibits contact when a lawyer “knows” that a person is represented by counsel. NYRPC Rule 4.2. It does not say “has reason to know;” and Rule 1.0 (k) defines knowledge as “actual knowledge of the fact in question.”. NYRPC Rule 1.0 (k).

Can a lawyer contact an adverse party?

Lawyers sometimes want to contact a person who is connected with an adverse party or formerly connected with an adverse party in a transaction or litigation. It may surprise you to learn that, while you generally cannot do that, you sometimes can. To avoid problems and complaints you need to understand the rules and the limits and spirit ...

What is ethics in brief?

Ethics in Brief is designed to present ethical issues that practitioners might well face on a daily basis. It is a service of the Legal Ethics Committee of the San Diego County Bar Association.

Can a non-lawyer contact another lawyer?

No California legal ethics rule expressly prohibits a non-lawyer client from contacting another party directly, although clients cannot be used as conduits for indirect prohibited contact from lawyers. Put another way, if the person contacting the other party is a lawyer, the California Rules of Professional Conduct come into play. ...

Can a lawyer contact the owner of a contract?

If so, applying Rule 2-100 (A), the lawyer cannot contact the other party’s owner directly in order to discuss that contract negotiation unless the other party’s outside counsel consents. Copying the other party’s counsel on an email initiating direct contact does not necessarily resolve the issue, although consent to contact can be implied ...

When dealing with a represented party, should care be taken to respect a party's relationship with its attorney?

When dealing with a represented party, care should be taken to respect a party’s relationship with its attorney. When dealing with an unrepresented party, care should be taken not to give legal advice, as a layman may later claim that the giving of such advice established an attorney-client relationship.

What is the rule for dealing with an unrepresented party?

Rule 4.03 —dealing with an unrepresented party. Rule 4.03 provides that when dealing with an unrepresented person, a lawyer “shall not state or imply that the lawyer is disinterested”. If the other person appears to misunderstand the lawyer’s role, the lawyer shall try to correct the misunderstanding.

What is the rule for representing a client?

Rule 4.02—dealing with a represented party. Rule 4.02 (a) generally provides that, in representing a client, a lawyer shall neither communicate nor “cause or encourage” another to communicate about the subject of the representation with a person or entity the lawyer “knows to be represented by another lawyer” without consent of the other lawyer. ...

Can a lawyer in another state contact a paralegal?

Thus a lawyer in another state cannot direct a paralegal or secretary to contact a represented party about the subject of the representation, but can encourage a client do so.

Is it ethical to go around outside counsel?

ABA Formal Ethics Opinion 06-443 (August 5, 2006) concludes that it is ethically proper for a lawyer to go around outside counsel to get to in-house counsel. The ABA’s analysis is that the rule is to protect laymen, and in-house counsel needs no such protection.

Can a lawyer communicate with another lawyer?

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 to do so by law or a court order.

Can a lawyer be a conduit?

But, in the end, it is an unsettled question as to whether the client, herself, can function as the lawyer’s conduit.