Let's talk: critical aspects of the anti-contact rule for lawyers.

I. Introduction

Few issues in litigation are as contentious as lawyers' allegedly improper attempts at ex parte communications with parties or people so closely identified with parties that they may be considered off limits to informal discovery efforts. This is not a one-sided issue. In personal injury litigation, for example, plaintiffs' lawyers strenuously resist attempts by defense lawyers to communicate ex parte with treating physicians. On the other side of the coin, defense lawyers representing organizations often bristle when plaintiffs' lawyers attempt to speak with current or former employees outside of defense counsel's presence. Regardless of side, lawyers' attempts at ex parte communications with opposing expert witnesses are sure to provoke accusations of impropriety. If a lawyer's ex parte communications are found to be improper, the consequences can be substantial. In addition to professional discipline, lawyers may be disqualified from further participation in the cases in which the communications occurred and they may face monetary sanctions. Other penalties, such as the exclusion of improperly obtained evidence, may severely impair representations and lead to a host of undesirable consequences.

There is a notable volume of case law on the professional responsibility ramifications of ex parte communications. Yet many cases provide little or no guidance to lawyers with respect to the limits of acceptable conduct, and some key areas of the law are incompletely understood or simply unsettled. This article examines several areas of recurring importance to trial lawyers insofar as ex parte communications go, including limits on communications with current and former employees of organizations; in-house counsel; treating physicians; and opposing expert witnesses. In doing so, it discusses applicable ethics rules as well as other legal principles bearing on these issues.

II. Applicable Rules of Professional Conduct

The American Bar Association's ("ABA') Model Rules of Professional Conduct govern lawyers' conduct in the overwhelming majority of jurisdictions. Model Rule 4.2, commonly referred to as the "anti-contact rule," (1) addresses lawyers' communications with persons who are represented by counsel. The role provides:

 
   In representing a client, a lawyer shall 
   not communicate 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 to do so by law 
   or a court order. (2) 

At the outset, Rule 4.2 plainly requires that the target lawyer be representing a client for a communication to be improper. (3) A lawyer acting pro se is "representing a client" for purposes of the rule. (4) As for knowing whether a person is represented by another lawyer, that is easily established where the other lawyer has made herself known by filing a pleading, calling to announce her representation, or writing to identify herself and her role. (5) Such clarity is not required to find a violation, however, because a lawyer's knowledge can always be inferred from the circumstances. Lawyers cannot avoid acquiring knowledge by turning a blind eye to the obvious. That said, the requirement is clearly one of actual knowledge. Lawyers are not required to speculate about a person's representation--nor does mere suspicion about a person's representation determine their obligations. (6) For example, a person's statement that she should speak with someone else--such as a workplace supervisor--before speaking with a lawyer, does not support the conclusion that the lawyer knew of the person's representation. (7) The fact that a lawyer should have known that a person was represented in a matter will not support a Rule 4.2 violation. (8)