May 2023 Ethically Speaking - When You Can (And Can’t) Contact a Represented Party

by Jennifer E. Pennington and Michael D. Stewart

The rule against contacting a represented party seems straightforward, but it presents various nuances and ethical risks. For example, can I speak with represented parties if they agree and say I do not need to contact their attorney? What if I do not know they have counsel? Can my client speak with the other side? Can I contact in-house counsel of an adverse party represented in the matter by outside counsel? Conversely, can adverse in-house counsel contact my client? Can opposing counsel contact my client if that counsel is representing themself in the matter? These and similar issues are generally reduced to two questions: what am I allowed to do under the rule, and what should I do if opposing counsel violates the rule?

We start with the central tenet of California Rule of Professional Conduct 4.2 Communication with a Represented Person: “In representing a client, a lawyer shall not communicate directly or indirectly 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.” Cal. Rules of Prof’l Conduct, rule 4.2(a).

Ignorance Is Not Bliss
Contacting your client’s adversary without asking if they are represented or feigning ignorance will not protect you. While Rule 4.2 applies only in circumstances where the lawyer knows that the person is in fact represented in the matter to be discussed, actual knowledge of the representation may be inferred from the circumstances. Cal. Rules of Prof’l Conduct, rule 1.0.1(f). When in doubt, ask if the adverse party (or witness) is represented by counsel.

Obtaining Consent to Communicate With a Represented Party
Let’s assume opposing counsel’s client calls you to discuss the case. She says that she consents to speaking with you without her counsel, her counsel has become a complete impediment to a rational resolution, and she would like “for once” to discuss how to resolve the lawsuit “sensibly.” Can you proceed with the conversation?

No. As Rule 4.2 plainly states, you must obtain “the consent of the other lawyer.” If you receive a call as outlined above, you must immediately terminate the communication once you “learn[] that the person is one with whom communication is not permitted by this rule.” Cal. Rules of Prof’l Conduct, rule 4.2, cmt. 1. Do you then have to notify opposing counsel about the call? Rule 4.2 does not say. But you may wish to do so because if (or when) opposing counsel learns of the subject call, he or she may view it as more nefarious than it was.

Rule 4.2 does say that it only applies if the communication is “about the subject of the representation.” Cal. Rules of Prof’l Conduct, rule 4.2, cmt. 4. Therefore, you could arguably call the opposing client to discuss “today’s weather,” but that too invites an angry call from opposing counsel or, worse, being raised with the judge or even a referral to the California State Bar.

While the scenario presented here involves a lawsuit, Rule 4.2 is not limited to the litigation context and “applies to communications with any person, whether or not a party to a formal adjudicative proceeding, contract, or negotiation, who is represented by counsel concerning the matter to which the communication relates.” Cal. Rules of Prof’l Conduct, rule 4.2, cmt. 2.

Can My Client Contact the Other Side?
Clients sometimes ask us if they can contact the adverse party directly. The answer is yes. Rule 4.2 “does not prevent represented persons from communicating directly with one another with respect to the subject of the representation, nor does it prohibit a lawyer from advising a client concerning such a communication.” Cal. Rules of Prof’l Conduct, rule 4.2, cmt. 3.

But be careful in other jurisdictions (for example, if you are acting under a pro hac vice admissions in another state). While Illinois and Washington, D.C. are similar to California and allow such communications (see Ill. Supreme Ct. Rules of Prof’l Conduct, rule 4.2, cmt. 4; D.C. Rules of Prof’l Conduct, rule 4.2, cmt. 2), some states limit an attorney’s involvement. For example, in New York, “a lawyer shall not communicate or cause another to communicate about the subject of the representation with a party” unless “the lawyer gives reasonable advance notice to the represented person’s counsel.” N.Y. Rules of Prof’l Conduct, rule 4.2(a), (b). In Texas, a lawyer shall not “cause or encourage the communication without the consent of the lawyer for the other party.” Tx. Disciplinary Rules of Prof’l Conduct, rule 4.02, cmt. 2.

Can You “Reply All” to Opposing Counsel’s Email if She Copied Her Client?
These days, electronic communication is the norm in the legal industry. With it comes great efficiency. However, electronic communications also present potential pitfalls not present when putting pen to paper. Everyone is familiar with the “reply all” function on emails and it is often expected that you reply all. But what happens when opposing counsel copies their client on an email to you? Can you “reply all” in that scenario? The short answer is likely yes, but there are various considerations to keep in mind.

Last year, the ABA issued a Formal Opinion advising that “lawyers who copy their clients on an electronic communication sent to counsel representing another person in the matter impliedly consent to receiving counsel’s ‘reply all’ to the communication.” ABA Comm’n on Ethics & Prof’l Responsibility, Formal Op. 503 (2022). This is consistent with the rationale of Rule 4.2. The situation where a lawyer copies her client on an electronic communication and the receiving lawyer hits “reply all” is not one in which the receiving lawyer is overreaching or attempting to pry into confidential lawyer-client communications. Rather, the “sending lawyer has chosen to give receiving counsel the impression that replying to all copied on the email or text is permissible and perhaps even encouraged.” Id. Moreover, as the ABA explained, not only is placing the burden on the sending lawyer the most efficient allocation of any burdens, it is also simpler for the sending lawyer to resolve the issue.

While according to the ABA it is generally permissible to reply-all where opposing counsel has copied their client, the presumption of implied consent is not absolute. First, despite copying their client, a lawyer can override the presumption of implied consent by using an express oral or written remark informing receiving counsel that the sending lawyer does not consent to a reply-all communication. This communication should be prominent and not hidden in a laundry list of disclaimers. Second, the presumption applies only to electronic communications, such as email and text messages, that the lawyer initiates, and does not apply to other forms of communication, such as a printed letter. Third, other rules can restrict the content of the “reply all” communication. See, e.g., Cal. Rules of Prof’l Conduct, rule 8.4(c) (prohibiting counsel from making reckless or intentional misrepresentations).

Additionally, in the event you receive an inadvertently transmitted email, the best practice in California is to respond only to counsel. Cal. Rules of Prof’l Conduct, rule 4.4, cmt. 1 (where a lawyer receives an inadvertently transmitted writing subject to Rule 4.4, in providing notice required by Rule 4.4, “the lawyer shall comply with rule 4.2”).

Can I Contact In-House Counsel, or Are They Also Off Limits?
Can lawyers contact in-house counsel of an adverse party where the company is represented by outside counsel concerning that matter? California has not directly answered that question, but in the case of a represented corporation or other entity, a lawyer is prohibited from communication with a current officer, director, partner, or managing agent of the organization. Cal. Rules of Prof’l Conduct, rule 4.2(b)(1).

Interestingly, the American Bar Association allows contact with such in-house counsel. See ABA Comm’n on Ethics & Prof’l Responsibility, Formal Op. 06-433 (2006). Unlike the persons Rule 4.2 is aimed at protecting, in-house counsel are deemed unlikely to make inadvertent harmful disclosures or be taken advantage of by adverse counsel. According to the ABA, the concerns that underly the rationale of Rule 4.2 are not present where in-house counsel is involved. Even under this ABA exception, the communication is prohibited if the in-house lawyer is in fact a party in the matter and represented by the same counsel as the organization. See Formal Op. 06-433.

So how should you handle this? Tell opposing counsel to stop. If they persist, tell your in-house counsel contact to simply hang-up or otherwise not engage. Also, a California judge might not be keen to adopt this ABA exception and might be a resource.

Speaking of In-House Counsel, Can They Communicate Directly With My Client?
Let’s assume your client attends a meeting with the adverse party without you (or any other lawyer). The adverse party shows up with several executives and its in-house counsel. May that in-house counsel communicate with your client or otherwise participate in the meeting?

While best practice would be for in-house counsel to seek your consent in advance of the meeting, he or she might argue that their participation was as a business person and not an attorney. Rule 4.2 does not contain an “in-house counsel” or “business focused” exception. Indeed, Rule 4.2 and California’s other “rules [of professional conduct] are intended to regulate professional conduct of lawyers, a violation of a rule can occur when a lawyer is not practicing law or acting in a professional capacity.” Cal. Rules of Prof’l Conduct, rule 1.0, cmt. 2.

However, there is some case law that might support such tactics. See, e.g., HTC Corp. v. Tech. Props. Ltd., 715 F. Supp. 2d 968 (N.D. Cal. 2010) (defendant’s chairman, who was a lawyer, could nonetheless contact plaintiff’s employees because he never represented his company in a legal capacity in the action and acted strictly in a business capacity); In re Rock Rubber & Supply of Conn., Inc., 345 B.R.37 (Bankr. D. Conn. 2006) (finding no 4.2 violation when Chapter 7 bankruptcy trustee, a lawyer, acting in his capacity as trustee, communicated with bank he knew to be represented by counsel).

Can Opposing Counsel Circumvent Rule 4.2 if He or She Is Pro Per?
Let’s assume you have a litigation against an attorney who represents themself. Your client calls you and recites her lengthy phone call with opposing counsel, i.e., the litigant. Did your opponent violate Rule 4.2? Surprisingly, no. “The rule also does not prohibit a lawyer who is a party to a legal matter from communicating on his or her own behalf with a represented person in that matter.” Cal. Rules of Prof’l Conduct, rule 4.2, cmt. 3.

The nuances of California’s Rule 4.2 require careful consideration. The bottom line? Look at Rule 4.2 and its comments before you leap.

Jennifer E. Pennington is an associate in the Business Trial Practice Group in the Los Angeles office of Sheppard, Mullin, Richter & Hampton LLP. She can be reached at jepennington@sheppardmullin.com. Michael D. Stewart is a partner and General Counsel of Sheppard, Mullin, Richter & Hampton LLP. He is also a member of the OCBA’s Professionalism & Ethics Committee. He can be reached at mstewart@sheppardmullin.com. The views expressed herein are their own.