Communications with Represented PersonsIssues for
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.|
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 the Department attorney knows that the person is
represented. Department attorneys are not required in all situations to
inquire of a person whether he is represented by counsel. However, many
states' contact rules provide that knowledge of a person's representation
by counsel may be inferred from circumstantial evidence. Therefore,
Department attorneys should consider all of the facts and circumstances
concerning possible representation and, in some situations, may need to
inquire of the person to determine whether he is represented.
- 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. "Communication"
involves oral and written contact. It also involves merely listening to a
represented person, even when the Department attorney is not asking the
represented person any questions.
- Whether a person is represented by a lawyer in the matter about which
the Department attorney wants to communicate with the person. The contact
rule only governs communications with represented persons about the
subject matter for which they are represented. A lawyer who represents a
person or entity cannot assert a blanket representation by which that
lawyer purports to represent the person or entity on all subjects and all
matters. The rule does not govern communications with a represented
person concerning matters outside the representation. Matters outside the
representation can include new or separate criminal conduct. Whether a
matter is a separate matter from that on which a person is represented is
not necessarily determined by the fact that a different proceeding is
involved. Department attorneys should be particularly aware of this issue
when there are parallel administrative/civil investigations or proceedings
and a criminal investigation or proceeding.
- How the term "represented person" is defined when an organization is
represented. The contacts rules vary from state to state in how they
define a "represented person" when that "person" is an organizational
entity. Some states prohibit communications only with those high-level
employees who can bind the organization in the matter on which the
organization is represented. Other states prohibit communications
concerning the matter in representation with persons having managerial
responsibility on behalf of the organization. Many states prohibit
communications with any person whose act or omission in connection with
that matter may be imputed to the organization for purposes of civil or
criminal liability. And a number of states preclude contact with a
corporate employee or constituent whose statement may constitute an
admission on the part of the organization. Many states' contacts rules do
not prohibit contact with former employees of a represented
organization; however, even when communicating with former
employees is permissible, the discussion should not include
attorney-client privileged information.
- An attorney who purports to represent more than one person regarding a
matter may be precluded from such representation by the relevant
professional responsibility conflict of interest rules. For example, an
attorney who represents an organization may have a conflict of interest if
he represents both the organization and certain of its employees.
See ABA Model Rule 1.7.
- Whose consent is necessary to authorize direct contact with a represented
person. It is the lawyer's consent, not the client's, that is required to
authorize contact with a represented person. If an employee of a
represented organization has retained his own individual lawyer, it is
sufficient in most states to obtain the consent of that individual lawyer,
notwithstanding the representation of the organization by its own counsel.
- What constitutes a contact that is "authorized by law." 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 such contacts are
recognized as "authorized by law" in the particular jurisdiction in which
they propose a contact with a represented person. Generally, the case law
recognizes covert contacts in non-custodial and pre-indictment situations
as "authorized by law." See United States v. Balter, 91 F.3d
427 (3d Cir.), cert. denied, 519 U.S. 1011 (1996); United States
v. Powe, 9 F.3d 68 (9th Cir. 1993); United States v. Heinz, 983
F.2d 609 (5th Cir. 1993); United States v. Ryans, 903 F.2d 731
(10th Cir.), cert. denied, 498 U.S. 855 (1990); United States v.
Schwimmer, 882 F.2d 22 (2d Cir. 1989), cert. denied, 493 U.S.
1071 (1990); United States v. Sutton, 801 F.2d 1346 (D.C. Cir.
1986); United States v. Fitterer, 710 F.2d 1328 (8th Cir.),
cert. denied, 464 U.S. 852 (1983); United States v. Jamil,
707 F.2d 638 (2d Cir. 1983); United States v. Kenny, 645 F.2d 1323
(9th Cir.), cert. denied, 452 U.S. 920 (1981); United States v.
Lemonakis, 485 F.2d 941 (D.C. Cir. 1973), cert. denied, 415
U.S. 989 (1974). A few courts have recognized such an exception in
connection with overt, pre-indictment contacts during a criminal
investigation. See United States v. Dobbs, 711 F.2d 84 (8th
Cir. 1983); United States v. Joseph Binder Schweitzer Emplem Co.,
167 F. Supp. 2d 862 (E.D.N.C. 2001).
[updated May 2005] [cited in USAM 9-13.200]