Represented Versus Unrepresented Persons

Every contact with a nonclient begins with a sorting question: does this person have a lawyer in the matter, and does the contacting lawyer know it? Rule 4.2 turns on both answers. It bars a lawyer who is representing a client from communicating about the subject of the representation with "a person the lawyer knows to be represented by another lawyer in the matter," unless that other lawyer consents or the law or a court order authorizes the contact.¹

The answers send the contact down one of two tracks. If the person is represented and the lawyer knows it, Rule 4.2 governs, and the lawyer must deal with the person through counsel. If the person has no lawyer, the lawyer may speak with the person directly, but the contact remains subject to Rule 4.3.²

Rule 4.3 sets three limits on what a lawyer says to an unrepresented person. The lawyer may not state or imply that the lawyer is disinterested, because a layperson who takes the lawyer for a neutral source may talk more freely than one who knows the lawyer is gathering material for the other side. When the lawyer knows or reasonably should know that the person misunderstands the lawyer's role in the matter, the lawyer must make reasonable efforts to correct the misunderstanding. And when the person's interests conflict, or may conflict, with the client's, the lawyer may give no legal advice other than the advice to obtain counsel. The third limit breaks most easily in a friendly interview. An unrepresented person asks whether to keep talking or whether a lawyer is needed, and any answer other than "get one" risks steering the person toward the outcome that favors the lawyer's own client.

Both rules answer the same concern, the gap in knowledge and skill between a trained lawyer and a layperson, but they answer it differently because the two persons stand differently. A person with no lawyer has nobody to route the communication through, so the law limits what the contacting lawyer says and implies. A person with a lawyer is protected only if that lawyer knows about the communication and has agreed to it. Nothing the contacting lawyer discloses can supply that protection, so Rule 4.2 bars the direct contact instead of merely regulating its content. Read broadly, the bar leaves a lawyer effectively unable to obtain information from a protected person without the consent of that person's lawyer.³ Candor about the lawyer's role therefore satisfies Rule 4.3 but never replaces counsel's consent under Rule 4.2.

One fact separates the two sellers, whether a lawyer stands behind the person in the matter, and that fact alone decides which rule applies.

The Gaylard facts show the same sorting at work on both sides of a lawsuit. Most state rules, unlike Alabama's, speak of a represented "person" instead of a "party," which leaves open whether the employees of a corporate party count.⁴ Under the broad reading, the two sides stand unequally. Until Homemakers' lawyer knows that Gaylard has retained a lawyer, she may call Gaylard herself, and even after she knows she may still call Gaylard's family and friends, subject throughout to Rule 4.3. Gaylard and her lawyer, by contrast, would be barred from contacting certain Homemakers employees, probably including Ms. Taylor, whom Gaylard's attorney telephoned and recorded without telling her.⁵ Even that bar depends on status. Most courts hold that Rule 4.2 does not prohibit interviews with former employees, and the source assumes Ms. Taylor was still employed when she was interviewed.⁶ A failed Rule 4.2 argument therefore does not end the analysis of a contact, because Rule 4.3 may still apply.

Exam Analysis Steps

Because the two rules depend on the same two facts, a fact pattern about contact with a nonclient is best sorted in a fixed order before any rule is applied. The steps are these:

Identify whether the person has a lawyer in the matter, remembering that a person with a lawyer only for a defined task, or a protected employee of a represented organization, raises the questions taught earlier in this chapter.
Ask whether the contacting lawyer knows of the representation, whether from a letter, a statement by the person, or circumstances that make it obvious, and ask again if the person reveals counsel partway through the conversation.
If the person is represented and the lawyer knows it, apply Rule 4.2 and look for consent from the person's lawyer, authorization by law, or a court order. The person's own willingness to talk lifts nothing.
If the person is unrepresented, apply Rule 4.3 and check that the lawyer has not stated or implied disinterest, has corrected any misunderstanding of the lawyer's role, and has offered no advice other than to obtain counsel.

The usual exam errors run in opposite directions. One treats a represented person as if a clear disclosure of the lawyer's role were enough, which overlooks that counsel's consent is the only thing that opens the door under Rule 4.2. The other stops at Rule 4.2 when the person has no lawyer, and so ignores the limits on what the lawyer may say under Rule 4.3.

Represented Versus Unrepresented Persons

Endnotes8