Consequences of Violation

Consequences of Violation

Rule 4.2 names the forbidden contact and lists the releases that make a contact permissible, but its text never says what follows when a lawyer makes a contact that no release covers.¹ Two actors fill that gap. The disciplinary system punishes the lawyer, and the court hearing the underlying dispute strips away whatever advantage the contact produced. Both depend on the elements taught earlier in this chapter, so this section takes the available responses first and then the requirement that makes them available: a proved violation.

The Range of Sanctions

A violation exposes the lawyer to four kinds of response, and three of them also reach the lawyer's client.²

• Professional discipline of the lawyer.
• Disqualification of the lawyer and the lawyer's entire firm from the matter.
• Voiding of any agreement negotiated through the contact.
• Exclusion or discounting of the evidence or acts the contact produced.

Discipline falls on the lawyer personally, because the rule's command runs to the contacting lawyer. In Attorney Disciplinary Board v. Box, the Iowa Supreme Court issued a public reprimand to a lawyer who represented a nephew buying real estate from his elderly aunt, met with the aunt at the lawyer's own office, and supervised the signing of the sale documents after another attorney had written that he represented her.³ The lawyer's defenses failed on the elements already taught. The other attorney's letter covered other personal matters as well as the will and trust and asked that contacts go through its author, so the court read it to reach the later dealings with the aunt.⁴ The reprimand shows discipline in practice: a formal sanction against a lawyer who dealt directly with a person the lawyer knew to have counsel.

The other three responses exist because discipline alone leaves the advantage in place. The advantage from an improper contact is information and leverage, such as a damaging admission or a glimpse of the other side's strategy, and that knowledge travels from the contacting lawyer to colleagues. Removing only that lawyer would leave the firm holding the fruits of the contact, so courts commonly disqualify the entire firm.⁵ Voiding reaches a different product of the contact. An agreement a lawyer negotiated directly with a represented person, with that person's lawyer absent and without permission, is the result of the imbalance the rule exists to prevent, and enforcing it would let the lawyer keep the gain.⁶ The hornbook says such an agreement may be voided, so the remedy is available but not automatic.

The fourth response reaches evidence and conduct instead of people. In Berkson v. Gogo LLC, the company's lawyer had received notice that a customer, Welsh, would be the named plaintiff in a putative class action. The company then allegedly delivered a check directly to Welsh and argued that the reimbursement defeated his standing.⁸ The court held that the direct communication violated the no-contact rule and made the check irrelevant to the class litigation, so Welsh kept a live controversy.⁹ It explained that obtaining a tactical advantage by knowingly contacting a represented party without notifying her lawyer will lead courts to protect the integrity of dispute resolution, including by discounting the relevance of actions taken in violation of the rule. It cited a decision that deleted some depositions from the record for that reason.¹⁰ The check's only value in the litigation was to end the case, and giving it that effect would reward the contact. Discounting it removes the payoff.

Remedies Require a Violation

A court can order none of these responses until it finds that the rule was broken, which means each element must be established first: the lawyer acted for a client, the communication concerned the subject of the representation, the lawyer knew the person was represented in the matter, and no consent, legal authorization, or court order applies.¹² When the person contacted works for an organization, the party seeking relief may also have to show that the employee's role brings the contact within the rule.

Berkson presents a contact whose elements were plain, because Gogo acted after the customer's lawyer had given notice. Gaylard v. Homemakers of Montgomery, Inc. presents the opposite case. Before suit, the plaintiff's lawyer obtained a recorded statement from Ms. Taylor, an employee of Oxford, the company the plaintiff intended to sue. At trial the circuit court sustained an objection to using that statement as a prior inconsistent statement on cross-examination of Ms. Taylor, and its only basis was a finding that the lawyer had violated Rule 4.2.¹³ The Alabama Supreme Court held the ruling erroneous because no violation had occurred. The state's rule applied only to communications with a party, and only when the attorney knew the party was represented. Oxford was not yet a party, because no action had been filed, and nothing showed that the lawyer knew or had reason to think Oxford had retained counsel on the matter.¹⁴ The committee comments reach an agent or employee of a corporate party when the corporation's liability will rest on the agent's actions, but that did not help the objecting side while Oxford was not yet a party. The court added that the rules do not require a lawyer to file suit before speaking to the person with whom the client has a dispute.¹⁵

Berkson and Gaylard involved the same kind of relief, discounting or excluding what the contact produced, and they came out opposite ways because the elements differed. The Model Rule's word person removes the first ground in Gaylard, since pre-suit timing no longer matters. The second ground survives that change. The lawyer's knowledge of the representation is an independent element, so a remedy still requires facts showing the lawyer knew.

Courts also treat the remedy as a question separate from whether the rule was violated. In Weider Sports Equipment Co. v. Fitness First, Inc., Icon sought suppression of evidence and a limit on discovery based on a contact with Thompson, an Icon employee, and Weider argued that Icon had waived any protection against use of the evidence.¹⁶ The court framed two issues in order: whether the rule had been violated and, if so, whether suppression and a discovery limit were an appropriate remedy.¹⁷ It also found that Icon had not established Thompson's managerial or supervisory status with any precision, noting that his salary was modest for a manager and that there was no real proof of his functional role.¹⁸ The excerpt stops before the remedy, so Weider shows the order of inquiry and the burden of proving the protected status, not an outcome.

That ordering follows from what the remedies cost. Disqualification takes a client's chosen lawyer and the firm's accumulated work from a client who may have done nothing wrong. Voiding upsets a bargain, and exclusion removes evidence from the fact-finder. Responses that heavy are justified only when the conduct the rule forbids actually occurred, and a remedy imposed without a violation punishes a lawyer for something the rule permits.

Facts about how much the contact helped the other side, or how badly a party wants relief, say nothing about steps one through five. Until those steps are met, the remedy cannot be reached.