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]