Posted Jun 05, 2007 08:12 am CDT
But what if that other party is a form of organization rather than an individual? And what if the lawyer wants to communicate with the organization’s inside counsel?
In that circumstance, the communication may take place without violating Model Rule 4.2, states ABA Formal Opinion 06-443 (Aug. 5, 2006), issued by the Standing Committee on Ethics and Professional Responsibility.
In its opinion, the committee notes that Model Rule 4.2 is not intended to keep lawyers from communicating with each other.
“The purpose of Rule 4.2 is to prevent a skilled advocate from taking advantage of a nonlawyer,” states the opinion. “The protections provided by Rule 4.2 are not needed when the constituent of an organization is a lawyer employee of that organization who is acting as a lawyer for that organization. Unlike non-lawyer constituents, inside counsel ordinarily are available for contact by counsel for the opposing party.”
But an adverse attorney should not communicate with inside counsel who is part of an organization’s “constituent” group–who participated, for instance, in giving business advice or in making decisions that gave rise to the issues in dispute–without consent of the organization’s outside attorneys. In certain circumstances, it might be a violation for an adverse attorney to contact an organization’s inside counsel after being asked not to do so.
Moreover, the opinion notes, “Inside counsel are free to avoid such contact by referring the opposing lawyer to other inside counsel or to outside counsel.”