Articles are provided regularly by LACBA’s longstanding Professional Responsibility and Ethics Committee.
By Clare Pastore[1]
Most lawyers are well aware of the so-called “no contact rule” preventing them from communicating with represented persons about the subject of that representation if the lawyer is also representing someone in the matter, unless the represented person’s lawyer consents. Some form of this anti contact rule applies in every jurisdiction. A new ABA ethics opinion, however, may inadvertently sow confusion among California attorneys. In addition, the no contact rule has long had nuances and wrinkles not always obvious to all lawyers. Therefore, a short refresher may be in order.
First, the basics: California’s Rule of Professional Conduct (“CRPC”) 4.2(a) states:
In representing a client, a lawyer shall not communicate directly or indirectly 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.
Like its predecessor, CRPC Rule 2-100, Rule 4.2 is intended to protect the attorney-client relationship and prevent represented persons from being taken advantage of by opposing counsel.[2] The rule “shields the opposing party not only from an attorney’s approaches which are intentionally improper, but, in addition, from approaches which are well intentioned but misguided.”[3]
Subsection (b) clarifies the application of the rule to represented entities, including corporations and governments, while subsection (c) notes that the Rule does not prohibit communications with a public official, board, committee or body, or communications otherwise authorized by law or court order. Subsection (d) defines “managing agent” of an organization and “public official.”
California’s rule differs somewhat in wording from ABA Model Rule 4.2. For example, the Model Rule’s entire one-sentence text is identical to the first section of California’s rule (4.2(a)) except that the Model Rule does not include the “directly or indirectly” language that our rule does.[4] Our rule also includes in rule text other concepts that are instead captured by comments under the Model Rule.[5]
In substance however, the California rule and Model Rule 4.2 are functionally very similar. But a recent ABA opinion nonetheless suggests important differences in interpretation.
ABA Formal Opinion 22-502, issued September 28, 2022, tackles the issue of whether a lawyer representing herself qualifies as a “party” who may communicate with her opposing party directly without consent of opposing party’s counsel. Client-to-client communication, while not addressed explicitly in Model Rule 4.2, is permitted by Comment 4’s statement that “Parties to a matter may communicate directly with each other. . . .” While noting that state authorities are split on the question, the new opinion concludes that such communication is impermissible when one of the parties is a pro se lawyer.[6] The committee opines that allowing such communication poses a “substantial risk” of enabling the very things the anti contact rule is designed to prevent: “overreaching, disruption of the represented person’s client-lawyer relationship, and acquisition of uncounselled [sic] disclosures.”[7]
Interestingly, the Opinion drew a rare published dissent from two members of the ABA Committee. The dissenters agreed that prohibiting pro se lawyers from communicating with represented persons is desirable, but objected to the Opinion’s conclusion that the communication is forbidden. This is because the Model Rule (like California’s rule) applies to lawyers “in representing a client” and these members argue that a self-representing lawyer is not representing a client. Applying the prohibition to pro se lawyers renders the phrase “in representing a client” surplusage, argues the dissent. Moreover, they claim, the majority’s position is highly likely to mislead lawyers who read the rule and Comment 4’s statement that parties may communicate directly and have no reason to know that an ethics opinion carves out an exception for lawyer-parties.[8]
California’s position lines up unequivocally with the ABA Opinion’s dissent. Comment 3 to our Rule 4.2 states, inter alia, “The rule [] does not prohibit a lawyer who is a party to a legal matter from communicating on his or her own behalf with a represented person in that matter.” The same language was included in the “Discussion” under former Rule 2-100. Therefore, the ABA Opinion should not be regarded as persuasive in California.
Below is a list of other issues that arise with some frequency under Rule 4.2, in a question and answer format.
Q: Does the rule bar contact by a lawyer with an opposing client if the opposing client initiates the communication? (The classic scenario presenting this question is an opposing client who is frustrated with her own lawyer and calls opposing counsel for information.)
A: Yes, contact is forbidden even if the opposing client, not the lawyer, initiates it. See comment 1 to Rule 4.2 (“This rule applies even though the represented person initiates or consents to the communication.”)
Q: Does the rule bar contact with a represented person who is not a party to an action, or not opposed to the lawyer’s client in an action?
A: Yes. The rule forbids contact with represented persons, not only represented parties. And it applies in both litigation and non-litigation contexts.[9] It does not matter whether the represented person is a party to an action.
Q: Does the rule bar all communication with a represented party by a lawyer representing a client?
A: No, the rule bars only communication about the subject of the representation.[10]
Q: Does the rule bar a lawyer from consulting with a client who is dissatisfied with her own lawyer and considering changing counsel?
A: No, the rule does not bar a lawyer who is not representing a client from communicating with any person. So a client may contact a lawyer not involved in the matter, and the lawyer may communicate with that client without seeking permission of the client’s current lawyer. [11]
Q: When the represented “person” is an entity, does the rule ban communication with former officer, employees, or agents?
A: No, CRPC 4.2(b)(1) and (b)(2) ban contact only with “current” officers, directors, partners, managing agents, and certain “current” employees.
Q: Does the rule ban communication with opposing clients if the lawyer copies the opposing lawyer as well?
A: Yes. This is because the consent, not mere knowledge, of the represented person’s lawyer is required. [12]
Q: Does the rule permit using “reply all” to a communication from opposing counsel, if opposing counsel has included her own clients among those receiving the email?
A: Most likely. This issue is not addressed explicitly in the Rule or its comments, but a 2011 California State Bar ethics opinion concluded that a lawyer who includes her clients among the recipients to an email sent to opposing counsel can be held to have implicitly consented to opposing counsel’s replying all to the email.[13] Given the uncertainty, lawyers are encouraged to delete the opposing client email address from the “reply all.”
Q: Does the anti contact rule bar communication with a person the lawyer knows will be represented by counsel, but who is not yet represented?
A: No. California courts have consistently declined to apply the rule to communication with persons not represented, even if the communicating attorney knows the person will be represented in the future.[14]
[1] Clare Pastore is Professor of the Practice of Law at USC Gould School of Law and a member of the LA County Bar Professional Responsibility and Ethics Committee. The views expressed here are her own.
[2] See, e.g., Abeles v. State Bar, 9 Cal.3d 603, 609 (1973) (discussing former Rule 2-100).
[3] Abeles, 9 Cal. 3d at 609.
[4] However, comment 4 to the Model Rule does state that “[a] lawyer may not make a communication prohibited by this Rule through the acts of another.”
[5] See, e.g., comment 7 to MR 4.2 (clarifying which constituents of a represented entity are off-limits to communication by an attorney representing someone else in the matter) and stating that “[c]onsent of the organization’s lawyer is not required for communication with a former constituent;” comment 5 to MR 4.2 (noting that a client’s constitutional or other legal right to communicate with the government is not restricted by the rule).
[6] ABA Formal Op. 22-502 (Sept. 28, 2022).
[9]CRPC 4.2, comment 2. See also Hernandez v. Vitamin Shoppe Indus., Inc., 174 Cal.App. 4th 1441, 1460 (2009) (decided under former rule).
[10] CRPC 4.2(a). See also Comment 4 (“This rule does not prohibit communications with a represented person concerning matters outside the representation.”)
[11] See Comment 5 to CRPC 4.2 (“This rule does not prohibit communications initiated by a represented person
[12] See Cal. Eth. Op. 2011-181 (2011) at 2 (“copying the other lawyer on correspondence is not necessarily sufficient—the rule requires consent”) (citing out of state authorities including ABA Informal Op. 1348). See also Tuft et al., Rutter Group California Practice Guide- Professional Responsibility at § 8:755 (“sending a person copies of correspondence directed to his or her lawyer would no doubt be treated as an ‘indirect’ communication with the person within the meaning of the Rule.”)
[13] See id. at 3; see also ABA Eth. Op. 22-503 (Nov. 2, 2022) (concluding that absent special circumstances such as an explicit instruction not to reply all, a lawyer who includes her clients on an email to another lawyer has implicitly consented to the receiving lawyer’s replying to all).
[14] See, e.g., Jorgensen v. Taco Bell, 50 Cal. 4th 1398, 1401 (1996); Truitt v. Sup. Ct., 59 Cal. App. 4th 1183, 1188 (1997) (both decided under former rule).
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