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The Scope of the Ethical Prohibition on Communications
A portion of a CLE presentation for the Kentucky Bar Association
Benjamin Cowgill, Counselor and Attorney at Law
2333 Alexandria Drive, Lexington, Kentucky 40504
Telephone: (859) 225-5236 • Fax: (859) 225-5237
Web site: cowgill.com
Rule 4.2 of the Kentucky Rules of Professional Conduct [SCR 3.130-4.2] states:
“In representing a client, a lawyer shall not communicate about the subject matter of the representation with a party 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.”
In lay terms, the Rule is generally understood to prohibit a lawyer from communicating with a represented person who is on the opposing side of a case without the consent of the lawyer for the other side. See Humco, Inc. d/b/a Humana Hospital Lexington v. Nobel, 31 S.W.3d 916 (2000) [purpose of Rule is "to preserve the positions of the parties in an adversarial system"]. "The ethics rule against communicating with a represented person without the consent of his or her lawyer safeguards the lawyer-client relationship and shields the interest of a represented person from encroachment by opposing counsel." ABA/BNA Lawyer's Manual on Professional Conduct, § 71:303, citing U.S. v. Lopez, 4 F.3d 1455 (9th Cir. 1993) [emphasis added].
The provisions of Rule 4.2 "provide protection of the represented person against overreaching by adverse counsel, safeguard the client-lawyer relationship from interference by adverse counsel, and reduce the likelihood that clients will disclose privileged or other information that might harm their interests." ABA Formal Ethics Opinion 95-396) (1995). See also Polycast Tech. Corp. v. Uniroyal, Inc., 19 F.R.D. 621 (S.D.N.Y. 1990) (holding that the Rule prevents lawyers from eliciting "unwise statements" from opponents, protects privileged information and facilitates settlements by allowing lawyers to conduct negotiations on behalf of their respective clients); and Messing, Rudavsky & Weliky, P.C. v. President & Fellows of Harvard College, 764 N.E.2d 825 (Mass. 2002) (holding that the Rule protects clients from overreaching by other lawyers).
Thus, Rule 4.2 has been applied in a number of civil and criminal cases where a lawyer communicated with someone on the other side of the case. See ABA/BNA Lawyer's Manual on Professional Conduct, 71:301 et seq. and Model Rules of Professional Conduct (5th Ed. 2003), at 417 et seq.
B. The Significance of Comment 
Comment  to Rule 4.2 states that "[t]his rule also covers any person, whether or not a party to a formal proceeding, who is represented by counsel concerning the matter in question." Those words may cause the reader to misunderstand or misinterpret Rule 4.2 as a blanket prohibition against any communication with a represented person under any circumstances whatsoever. That is not the intent of the Comment, or the true nature of the Rule, as the following paragraphs will show.
The point of Comment  is quite simply that Rule 4.2 does not turn on whether the person under consideration is a "party" to a "formal proceeding." Thus, for example, a lawyer would probably violate the Rule by communicating with an employee of a corporation about a pending lawsuit in which the corporation is an adverse party known to be represented by counsel. While the employee is not technically a "party" to the case, he is obviously a member of the opposing camp. It is therefore appropriate to prohibit communication with that employee, absent the consent of the company's lawyer, and that is exactly what the Rule does. This application of the Rule protects the corporation against overreaching by adverse counsel, safeguards the client-lawyer relationship from interference by adverse counsel, and reduces the likelihood that an agent of the corporation will disclose privileged or other confidential information that might harm the company's interest in the litigation. It is consistent with the underlying purpose of the Rule as stated above.
This conclusion is reinforced by considering Rule 4.2 of the ABA Model Rules. The Supreme Court of Kentucky adopted the Model Rules in 1989. Since that time, the ABA has clarified the intent of the Rules from time to time, primarily by expanding the comments. It is therefore important to consider the comments to the ABA Model Rule whenever one makes judgments about the intended meaning and application of the parallel Kentucky Rules.
Where Rule 4.2 is concerned, the only difference between the text of ABA Model Rule 4.2 and Kentucky Rule 4.2 is that the Model Rule uses the term "person" rather than "party" in the phrase "a lawyer shall not communicate about he subject of the representation with a party the lawyer knows to be represented . . ." The ABA changed the term "party" to "person" as part of clarifications to the Model Rules in 1996. As explained above, Kentucky has achieved the same result through comment  to Kentucky Rule 4.2, which provides that "this rule also covers any person, whether or not a party to a formal proceeding . . . "
Thus, with this clarification regarding persons who are not parties, the current version of Kentucky Rule 4.2 is virtually identical to the Model Rule, and the comments to the Model Rule are therefore probative of what the Kentucky Rule actually means.
C. Communications With Represented Persons Which Do Not Occur In Connection
The first four words of Rule 4.2 are “In representing a client, …” It is easy enough to overlook the significance of those words because they sound like prefatory language that does not affect the substance of the Rule – in the same way that the phrase, “When in the course of human events…” has a prefatory role in the Declaration of Independence. But in fact, those first four words qualify everything that comes after them and thereby limit the entire scope of the Rule. The net result is quite plainly that a lawyer who is representing a client cannot communicate with a person or party represented by another lawyer, without the consent of that lawyer.
This can be seen from Comment  to Model Rule 4.2, which states in part:
"This Rule does not prohibit communication with a represented person, or an employee or agent of such a person, concerning matters outside the representation. For example, the existence of a controversy between a government agency and a private party, or between two organizations, does not prohibit a lawyer for either from communicating with non-lawyer representatives of the other regarding a separate matter. Nor does this Rule preclude communication with a represented person who is seeking advice from a lawyer who is not otherwise representing a client in the matter." [Emphasis added].
Likewise, the ABA’s Annotated Model Rules of Professional Conduct explains that:
"Paragraph  of the Comment was added in 2002 to clarify that a lawyer is permitted to talk to someone who already has counsel but who wants a second opinion from an outsider. This accords with the interpretation of the Rule before the amendment. See, e.g., State ex rel. Oklahoma Bar Ass'n v. Butner, 976 P. 2d 542 (Okla. 1998) (when represented person seeks lawyer for second opinion, consent of counsel not required); Colo. Ethics Op. 111 (2002) (same holding); Vt. Ethics Op. 2001-01 (undated) (same holding); see also L.A. Ethics Op. 487 (1996) (lawyer not involved in mater may give opinion on lawyer's competence and on reasonableness of fee agreement); S.C. Ethics Op. 97-07 (1997) (if lawyer from whom second opinion sought needs to consult existing counsel to give informed opinion, lawyer must so advise)." American Bar Association, Annotated Rules of Professional Conduct (5th Ed. 2003), at 421.
In short, comment  was merely a clarification of what the Rule provided all along.
C. Communications in the Nature of “Second Opinion” Consultations
The significance of those first four words – “in representing a client” – becomes especially clear when one considers whether Rule 4.2 prohibits a lawyer from communicating with a represented person who initiates contact with the lawyer for the very reason that he or she is dissatisfied with the representation provided by the other lawyer.
Rule 4.2 does not prohibit a lawyer from communicating with a represented person under that circumstance, as the following authorities clearly show.
In KBA Ethics Opinion E-325 (1987), the KBA Ethics Committee considered the question, "May a lawyer provide a 'second opinion' to a person who is already represented by counsel?" and answered "Yes." The Committee noted that:
"As a point of professional courtesy, a lawyer should avoid interfering in an on-going attorney-client relationship. Nevertheless, an attorney may consult with a client who has already secured the advice of one lawyer, and wants to obtain a “second opinion”.
In the course of providing such services, the consulting lawyer should make every effort not to impair the first relationship, and may not use the consultation as a means of soliciting the client. In addition, the best interests of the client are usually served by the second lawyer obtaining the consent of the client to consult with the first so that all significant facts can be taken into account."
KBA E-325 is consistent with authoritative interpretation of Rule 4.2, and with ethics opinions from other states. In particular:
Modern Legal Ethics, the highly-respected treatise by Professor Charles Wolfram, was published in 1986, three years before Rule 4.2 was adopted in Kentucky and almost twenty years before comment  was added to the ABA Model Rule. In that treatise, Professor Wolfram foresaw the possibility that someone would misinterpret Rule 4.2 as applying to "second-lawyer" situations. He explained why the Rule did not apply, in eloquent prose that deserves to be quoted at length:
“The breadth of the prohibition against contact with every represented person raises the question whether a lawyer can counsel another lawyer's client about apprehended malpractice, an excessive fee, or other possible client dissatisfactions. Both DR 7-104(A)(1) ("during the course of his representation of a client") and Model Rule 4.2 ("in representing a client") strongly imply that their prohibitions are limited to attempts by the offending lawyer, in representing his or her own client, drive wedges between other lawyers and clients. The wording of the rules, the inapplicability of the policy of avoiding unwarranted intermeddling with exploitable clients, and the desirability of providing clients with unencumbered access to disinterested advice about important legal matters all strongly support the view that it is permissible for a lawyer to consult with a prospective client currently represented by another lawyer if the client complains of the work being done for the client by the second lawyer. The status of client should not amount to bondage. A client should be able to seek out a professional opinion about the quality of a questioned representation without the necessity of either obtaining prior consent from the other lawyer or requiring the client to end that lawyer's representation." Wolfram, Modern Legal Ethics (1986), at 612.
The same conclusion has been reached by ethics committees in three different states between 1997 and 2001. Specifically:
1. South Carolina Bar Association Ethics Advisory Opinion 97-7
In Ethics Advisory Opinion 97-7 (1997), the South Carolina Bar Association considered the following question:
“The Client is represented by Attorney A in a pending legal matter. The Client has questions and concerns about the manner in which Attorney A is handling the legal matter and wishes to discuss these matters with Attorney B. The Client does not wish to terminate his employment with Attorney A; nor does the Client wish to jeopardize his relationship with Attorney A by disclosing to Attorney A that he wished to discuss these matters with Attorney B. May Attorney B without obtaining the consent of Attorney A discuss with the Client a pending legal matter where Attorney B knows the Client is represented by Attorney A with respect to the matter?”
The Bar Association concluded that:
"There is no proscription in the Rules of Professional Conduct against an attorney discussing a pending legal matter with a client who is represented by another attorney with respect to the matter. However, the Rules of Professional Conduct may require Attorney B to qualify or clarify with a client any conclusions or opinions Attorney B render with respect to the representation of Attorney A."
2. Colorado Ethics Opinion 111
Likewise, in Colorado Ethics Opinion 111 (20002), the Ethics Committee of the Colorado Bar Association was asked to consider a situation in which a lawyer ("Lawyer No. 2") is asked to counsel a person (the "Client") who has come to him for a second opinion, when he knows that that the Client is actively represented by another lawyer ("Lawyer No. 1") in the same matter. The Colorado Bar Association identified two distinct issues:
"(1) Whether Lawyer No. 2 is ethically required to obtain the consent of Lawyer No. 1 before communicating with the Client about the Matter or before providing the Client with a Second Opinion; and
(2) Whether Lawyer No. 2 is ethically required to decline (or discontinue) representation of the Client regarding the Matter if the Client refuses to authorize Lawyer No. 2 to contact Lawyer No. 1 to discuss Lawyer No. 1’s representation of the Matter."
The Ethics Committee concluded that "Rule 4.2 of the Colorado Rules of Professional Conduct does not require Lawyer No. 2 to obtain the consent of Lawyer No. 1 in order to communicate with the Client concerning the Matter, where the Client initiates the communication for the purpose of obtaining a Second Opinion." In support of this conclusion, the Committee reasoned as follows:
“[Rule 4.2] prohibits a lawyer, in the course of representing a client, from communicating about the subject of the representation with a party the lawyer knows to be represented by another lawyer in the matter, without the consent of the other lawyer. The essential purpose of the Rule is to prohibit ex parte contacts or communications between lawyers representing clients and persons or parties known to be represented in the matter by counsel unless such counsel consents. The Rule does not apply to the circumstance described in the Introduction. The Committee believes that Colo.[Rule 4.2], by its terms, does not apply to the situation presented by the Client’s request for a Second Opinion, because the party protected by [Rule 4.2] is a person other than the Client.
"The Committee further believes that an extension of the prohibitions of [Rule 4.2] to the Second Opinion situations would infringe upon the Client’s inherent right to seek advice or representation from counsel of the Client’s choosing. The Committee believes the Client should be free to seek other or additional advice or opinions on the Matter, including opinions on the merit of previous advice or the competency of Lawyer No. 1’s representation. Thus, it is the opinion of the Committee that it is not necessary for Lawyer No. 2 to obtain the consent of Lawyer No. 1 to communicate or consult with the Client for the purpose of providing a Second Opinion." [Emphasis added].”
3. Vermont Ethics Opinion 2001-01
Likewise, in Vermont Ethics Opinion 2001-01, the Vermont Bar Association squarely confronted the issue of whether a lawyer violates Rule 4.2 by meeting and conferring with a person about the possibility of representing that person in a pending legal matter, without obtaining consent to do so from a lawyer who is already representing that person in that same legal matter. The Association concluded that "where a client seeks alternative representation from an attorney who otherwise has no interest in the matter concerning which the client seeks representation, application of the anti-contact rule should not be required." In support of this conclusion, the Association reasoned as follows:
“Although the ABA redrafted Rule 4.2 in 1995 to clarify that the anti-contact rule applies to all represented persons, not merely parties to existing litigation, there are no comments or reporters notes addressing contact where the lawyer is approached by the client and otherwise has no involvement in the representation. Application of the rule to require prior consent from court appointed counsel would tend to chill a client’s right to obtain legal services and therefore, is inconsistent with the purpose of the rules to provide the broadest possible access to legal representation. Where, as here, a client seeks out alternative representation from a lawyer who does not represent any other parties or interests with respect to the representation. A rule requiring prior consent would tend to chill the client’s free access to legal services.
In summary, Rule 4.2 does not prohibit a lawyer from communicating with a prospective client in a “second opinion” scenario.
When Rule 4.2 does apply, it requires that a lawyer obtain consent from the lawyer for the represented person or party. The consent requirement makes perfect sense when the Rule is applied to contact with a person or party represented by an opposing lawyer, but makes no sense at all in a situation where a disaffected client desires a second opinion. It would give a lawyer the power to prevent his client from getting a second opinion about the case (or about the lawyers’ handling of the case), by refusing to consent to any communication between the client and another lawyer. Just imagine: An unhappy client goes to another lawyer for a second opinion. Lawyer B places a courtesy call to Lawyer A and says "I want you to know that your client has come to me and wants to talk to me about her legal matter." Lawyer A responds by saying "you do not have my consent to speak with her. She is a represented party, because I am currently representing her. If you proceed to communicate with her, I will file a bar complaint accusing you of violating Rule 4.2." If that were a correct understanding of Rule 4.2, a lawyer could prevent his client from getting help from another lawyer simply by withholding consent. That is clearly not what the Rule intends.
© 2006 Benjamin Cowgill • All rights reserved