Can I Communicate with Another Lawyer’s Client? Compliance with Rule 4.2
By Gina Hendryx, OBAEthics Counsel

Oklahoma Rules of Professional Conduct 4.2 (O.R.P.C. 4.2) prohibits a lawyer from communicating 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 restricting lawyers from communicating directly with persons who are represented, Rule 4.2 preserves the attorney-client relationship, protects clients against overreaching by other lawyers, and reduces the likelihood that clients will disclose confidential or damaging information (ABA Formal Ethics Op. 95-396, 1995).

SECOND OPINION, PLEASE...

You are approached by a prospective client seeking advice on the manner in which his case is being handled and the reasonableness of the fee being charged. The client already has counsel, but wants a “second opinion” from you. Must you seek the consent from his attorney before advising the prospective client? A lawyer is permitted to talk to someone who already has counsel but is seeking a second opinion. Consent of counsel is not required. See, e.g., State ex rel. Oklahoma Bar Ass’n v. Butner, 1998 OK 132, 976 P.2d 542 (Okla. 1998).

SHE DIDN’T TELL ME SHE HAD A LAWYER...

Consent of the opposing lawyer is required to talk with a represented person only if you “know” a person is represented. “Knowledge” has been defined as actual knowledge, but it may be inferred from the circumstances. In an Oklahoma case, the evidence did not support a finding that an insurance company’s lawyer knew the insured was represented when he took her statement. The documents received from the insurance company indicated she was unrepresented at the time of the accident and she said nothing about being represented when insurance company’s lawyer told her she could have a lawyer present. See, e.g., State ex rel. Oklahoma Bar Ass’n v. Harper, 2000 OK 6, 995 P.2d 1143 (Okla. 2000).

YOUR CLIENT KEEPS CALLING MY CLIENT...

A party to a matter may speak to other parties, even though both are represented by counsel. See Comment to O.R.P.C. 4.2. However, a lawyer may not “mastermind” the communications between a client and a represented person in an effort to elicit confidential information.

YOUR CLIENT KEEPS CALLING ME...

The rule applies even though the represented person initiates the communication. You should immediately terminate the conversation once you learn the person is represented in the matter.

YOUR LAWYER VIDEOTAPED ME AT WORK...

Observing a party is not the same as “communicating” with the party. Hill v. Shell Oil Co., 209 F.Supp. 2d 876 (N.D. Ill. 2002).

However, taking the act beyond mere observation to contact with the represented person may be improper. A lawyer should not cause a non lawyer to contact a represented person. The lawyer may not use an investigator or other person to do what the attorney may not. Therefore, the investigator should not engage the represented person in conversation or ex parte communications.

I’VE FIRED MY LAWYER AND I WANT TO SETTLE THIS MESS...

A lawyer should not necessarily accept a person’s statement that he has fired his attorney. Some states hold that you must contact the opposing counsel to confirm the termination. At a minimum, you should get written confirmation from the client that he has fired his attorney. ABA Formal Ethics Op. 95-396 (1995) states that a lawyer should seek confirmation that a representation has been terminated. In a case involving a court appointment, the lawyer should confirm that the court has granted counsel leave to withdraw.

These are only but a few of the dilemmas faced by attorneys when complying with Rule 4.2 communications. Much more complex issues are raised when the represented party is an organization with current and former employees. Care should be taken to review the applicable case law before contacting persons who may be represented in a matter. Violation of the rule may result in suppression of the evidence, return of documents, monetary sanctions, disqualification and discipline.