Court Orders

Court Orders

Rule 4.2 ends with a third way past its bar: a lawyer may communicate with a represented person when the lawyer "is authorized to do so by law or a court order."¹ Consent turns on the agreement of the person's own lawyer, and authorization by law turns on a source of law that applies whatever counsel thinks. A court order turns on a judge, who is neither lawyer nor the person to be contacted and who decides in advance that a particular contact may occur. Comment 6 names two occasions for asking. A lawyer may seek an order when "uncertain whether a communication with a represented person is permissible," and may seek one in "exceptional circumstances" to authorize "a communication that would otherwise be prohibited by this Rule," as where communication with a represented person "is necessary to avoid reasonably certain injury."²

Each occasion answers a problem the other two routes cannot solve. A lawyer who guesses wrong about whether a contact is permitted risks professional discipline, disqualification of the lawyer and the lawyer's entire firm, and the voiding of any agreement the contact produced.³ Opposing counsel's consent would ordinarily remove that risk, but counsel may refuse, and in some situations the lawyer cannot sensibly ask. A judge's ruling fills the gap, because judicial approval forecloses a later accusation of misconduct.⁴ An order also guards against rigid, unthinking application of the rule where its purposes are not implicated or are greatly weakened.⁵ Where counsel is the wrong gatekeeper, the judge becomes the neutral check that counsel's consent would otherwise supply.

The first occasion arises when the lawyer cannot tell whether the rule applies. Courts disagree about which employees of a represented organization are off limits, so a lawyer who cannot tell whether a particular corporate employee falls in a protected category may ask the court for clarification before making contact.⁶ A prosecutor faces a similar doubt when a charged defendant says he wants to discharge his lawyer and speak to the prosecutor directly. The remark alone does not end the representation, and there may be reason to doubt that the waiver of counsel is voluntary and knowing, so the prosecutor may obtain judicial approval before continuing the conversation.⁷ The lawyer who proceeds on private judgment stakes a career on a guess. The lawyer who asks a judge pays the cost of a motion and gains protection against a later charge of misconduct.

The second occasion is exceptional by definition, and it covers cases in which the usual protections point the wrong way. A court may find good cause to authorize a contact without notice to or consent of the person's lawyer when the contact is necessary to guard against a risk of death or bodily harm, whether to the represented person or to someone else.⁸ The same is true when a represented criminal defendant wants to speak with the prosecutor and does not want the lawyer notified or present, perhaps because the defendant fears that the lawyer is beholden to a co-defendant or even an accomplice in a conspiracy. On the government's ex parte application, the court may authorize the communication if it finds that the defendant is making a voluntary and informed waiver of the rights to remain silent and to be represented by counsel.⁹ The application goes forward without notice to the lawyer because the lawyer is the source of the defendant's worry. The judge asks whether the proposed communication is justified and whether the waiver is voluntary, knowing, and intelligent, which protects the defendant's constitutional rights and keeps the attorney-client relationship free from interference.¹⁰ Because ex parte and summary proceedings before a judge or magistrate, like those used to obtain a search warrant, are available, seeking permission is a minimal burden even when prompt action is needed.¹¹

The court-order clause also governs the stage after the investigatory exception closes. Once a represented person has been taken into custody, charged, or named as a defendant in a government civil proceeding, the government should seek judicial permission through the clause, even when exigent circumstances seem to justify an ex parte contact.¹² What, then, separates a permitted conversation with a represented defendant who wants to talk from a violation? The defendant's wishes are the same in both versions of the following scene.

The defendant's wish is identical in both versions and carries no weight in either, because a represented person cannot waive the rule, and only counsel's consent, legal authorization, or a court order can lift the bar.¹³ The second version differs because a neutral judge has examined the very thing the rule distrusts, a layperson's agreement to talk without counsel, and has found it genuine.

A court order is also the safe route for a problem the earlier discussion of class members left open. Class members other than the named representatives may have an indeterminate status or an attenuated relationship with class counsel, so defense counsel in a class action might obtain an order allowing direct contact with those unnamed members in an appropriate case and subject to appropriate limitations.¹⁴ The order settles in advance a question about who is represented that defense counsel could not safely resolve alone, since a wrong guess would draw the same sanctions as any other violation.

A court that grants permission need not grant it on open terms. It may limit the scope or timing of the conversations, or set out other instructions as a condition of its permission.¹⁵ That power lets the judge fit the contact to the reason it was allowed, so that whatever protective purposes of the rule remain in play are still served.

Authorization extends only as far as the order does, just as counsel's consent reaches only the contact that counsel approved.

These examples reduce to a practical rule of thumb: a lawyer who is unsure whether a contact is permitted should ask a judge.¹⁶ The clause speaks of being authorized to communicate, which points to obtaining the order before the contact. A lawyer who already holds counsel's consent or a clear legal authorization has no need for an order, because the order serves the doubtful case and the exceptional one. An exam stem in which a lawyer contacts a represented person and relies on the person's eagerness, the lawyer's good intentions, or a plan to ask the court later describes a lawyer with no authorization at all. The lawyer who files a motion first holds the authorization that counts.