Concept
Rule 4.2 and Its Purpose
Communications with represented persons
The No-Contact Rule
Rule 4.2 and Its Purpose
Model Rule 4.2 says: "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."1 Four parts carry the sentence: a speaker who is a lawyer acting for a client, a topic that is the subject of the representation, a listener whom the lawyer knows to have counsel in that matter, and a release that can come only from that counsel, the law, or a court. The command binds the contacting lawyer alone. Once that lawyer knows a person has counsel in the matter, every dealing with the person about the subject must run through that counsel. Because the rule stops a lawyer from reaching around opposing counsel, it goes by several names: the no-contact rule, the anti-contact rule, and the ex parte contact rule, where ex parte means that one side acts without the other.2
The logic of the rule is easiest to see from the client's chair. One advantage of hiring a lawyer is that other lawyers must deal with the lawyer instead of with the client, and Rule 4.2 enforces that advantage.3 The duty of restraint falls on the lawyer who would make the contact, not on the represented person. That restraint guards against three things.4
- Interference with the attorney-client relationship between the other lawyer and that lawyer's client.
- Inadvertent or uncounseled disclosure of confidential information by a layperson whose lawyer is not present.
- A statement from the represented party that would count as an admission under the rules of evidence.
All three grow from one imbalance. The rule exists to protect the represented person from "the supposed imbalance of legal skill and acumen between the lawyer and the party litigant."5 An advocate on the other side knows which answers will hurt, while a layperson with no counsel at the elbow usually does not.
Courts describe the same purposes in broader terms. As the court in Messing, Rudavsky & Weliky, P.C. v. President and Fellows of Harvard College put it, the rule is justified generally as preserving the mediating role of counsel on behalf of their clients, protecting clients from overreaching by counsel for adverse interests, and protecting the attorney-client relationship.6
The rule takes its present form from a preventive design. As Berkson v. Gogo LLC recounts, after the ABA created the Model Code of Professional Responsibility in 1970, the Canon was expanded into today's formulation of a prophylactic "no-contact" rule.7 A prophylactic rule prevents a danger by forbidding the conduct likely to cause it. The bar therefore applies before anyone speaks, and a violation does not depend on showing that the contact did any damage. The reasoning follows from the harms above. An admission once made, a confidence once disclosed, and a client's trust once shaken cannot be restored, and proving overreaching would mean reconstructing a private conversation after the fact. The rule bans the contact itself instead.
The bar attaches to represented persons on the subject of the matter, not to everyone who knows something about the dispute. In one secondary-source illustration, Gaylard and her lawyer would be prohibited from contacting certain employees of the corporate defendant, probably including Ms. Taylor, without the defendant's lawyer's permission, while calls to Gaylard's own family and friends remain open.8 Later sections return to which employees count as represented.
The line between a permitted overture and a prohibited one usually turns on who receives the message.
Only the recipient changed, and that change decides the outcome, because the harms the rule targets arise only when the adverse lawyer speaks to the person who has counsel. A violation requires four conditions together: the communication occurs while the lawyer is representing a client; it concerns the subject of the other lawyer's representation; the lawyer knows the person is represented by counsel on that subject; and the other lawyer has not consented and the contact is not otherwise authorized by law or a court order.9 The next sections take these parts one at a time.