By Richard D. Hendlin
This Ethics in Brief will focus on the venerable “no contact” rule set forth in California Rules of Professional Conduct [CRPC] Rule 4.2 which had its origin in the first rules promulgated in 1928.[i]
California’s Rule 4.2, effective November 11, 2018, made a significant change from former CRPC Rule 2-100 (A) by substituting the broader term “person” for “party” bringing it in line with that of all federal and state law applying the rule outside the litigation context to “persons” represented in connection with a particular matter, even if the “persons” are not “parties” in the matter and in accord with the American Bar Association [ABA] Model Rule 4.2 and every other jurisdiction’s ethics rules in the country. (Id.)
Rule 4.2 (a), entitled “Communication with a Represented Person,” states the basic prohibition:
(a) 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.[ii]
Rule 4.2 provides protection of the represented person against overreaching by adverse counsel, and reduces the likelihood that clients will disclose privileged or other information that might harm their interests. (ABA Formal Op. 95-396.)
In Abeles v. State Bar (1973) 9 Cal.3d 603, 609, the Supreme Court stated:
This rule [referring to a predecessor of Rule 4.2] is necessary to the preservation of the attorney-client relationship and the proper functioning of the administration of justice. It shields the opposing party not only from an attorney’s approaches which are intentionally improper, but, in addition, from approaches which are well intended but misguided. The rule was designed to permit an attorney to function adequately in his proper role and to prevent the opposing attorney from impeding his performance in such role.
(Internal quotes and citations omitted. See also U.S. v. Talao (9th Cir. 2000) 222 F.3d 1133, 1138).
“In Representing a Client”
Rule 4.2(a) applies to an attorney “representing a client.” Its purpose is to prevent an attorney representing one person in a matter from communicating with another represented person about the matter without the consent of that person’s attorney. (Mitton v. State Bar of Cal. (1969) 71 Cal.2d 525, 534.)
Thus, if a lawyer doesn’t represent a client in a matter, Rule 4.2 is inapplicable. For example, in the recent case of Bowen v. Lin (2022) 2022 Cal. App. LEXIS 549; 2022 WL 2253913, (California Court of Appeal, Second Appellate District, Division Six) (June 6, 2022), the lawyer daughter of represented parents convinced them to terminate their relationship with their lawyer and engage her to settle their property damage action. The fired lawyer sued and claimed, among other things, that the daughter’s conduct violated Rule 4.2. The trial court and the court of appeal rejected the argument. The court held that Rule 4.2 applies to a lawyer “representing a client.” The daughter, when she advised her parents to switch lawyers, did not represent any party in the matter. Accordingly, rule 4.2 did not apply to her. (See also, HTC Corp. v. Technology Properties Ltd. (N.D.Cal. 2010) 715 F.Supp.2d 968,972 [lawyer not involved in an action did not violate former Rule 2-100(A) when communicating with party represented in the action.].)
“Represented by Another Lawyer”
There is no ban on a lawyer communicating with a person not represented by counsel, including a pro per who is being assisted by an attorney not of record. (Tuft, Peck & Mohr, Cal. Prac. Guide: Professional Responsibility, ¶¶8-794 – 8-795 [pgs. 8-155 and 8-156] (The Rutter Group 2021); McMillan v. Shadow Ridge at Oak Park Homeowner’s Ass’n (2008) 165 CA4th 960, 966-967 (decided under former rule).) The lawyer, however, must comply with Rule 4.3[iii] which requires, among other things, that a lawyer in communicating on behalf of a client with a person who is not represented by counsel, shall not state or imply that the lawyer is disinterested.
Rule 4.2 also does not prohibit communications initiated by a represented person seeking advice or representation from an independent lawyer of the person’s choice. (Rule 4.2, Comment [5].)
“Consent of the Other Lawyer“
Rule 4.2 applies even though the represented person initiates or consents to the communication. (Rule 4.2, Comment [1].) It is the consent of the person’s lawyer that must be obtained. A lawyer must immediately terminate communication with a person if, after commencing communication, the lawyer learns that the person is represented. (Id.)
A common misconception is that the rule prohibits communication outside the presence of the other lawyer. The presence of the other lawyer, however, is not necessarily sufficient to satisfy the requirements of Rule 4.2. The rule specifies that the consent of the other lawyer is required in order for a member to be permitted to communicate with a represented person about the subject of the representation. (See Cal. State Bar Formal Opn. No. 2011-181.)
Rule 4.2 also prohibits a lawyer from simultaneously sending a letter or email directly to a represented person and to her counsel, without first obtaining consent to the direct communication or unless otherwise authorized by law. (Ibid., New York City Bar Formal Opinion 2009-01 construing its version of Rule 4.2.)
Similarly, ABA Formal Op. 92-362 concludes that sending a settlement offer directly to the represented party is improper, absent the other lawyer’s consent. Also, an offering party’s lawyer is prohibited from sending opposing party a copy of a settlement offer sent to opposing party’s lawyer. (ABA Informal Opn. 1348.)
It also is important to keep in mind that the rule is not limited to opposing parties, but also applies to co-parties and other non-opposing parties regarding the subject matter of the representation. (Hernandez v. Vitamin Shoppe Indus., Inc. (2009) 174 CA4th 1441, 1460 (decided under former rule, finding the conditional class certification triggered the “no contact” rule with co-parties in class action.)
Communicating Indirectly
The prohibition against communicating “indirectly” with a represented person is intended to address situations where a lawyer seeks to communicate “through an intermediary such as an agent, investigator or the lawyer’s client.” (Rule 4.2, Comment [3].)
Rule 4.2’s prohibition against communicating “indirectly” does not prevent represented persons from communicating directly with one another with respect the subject of the representation, nor does it prohibit a lawyer from advising a client concerning such a communication. A lawyer may also advise a client not to accept or engage in such communications. (Rule 4.2, Comment [3].)
The rule also does not prohibit a lawyer who is party to a matter from communicating on his or her own behalf with a represented person in that matter. (Id.) The lawyer’s independent rights as a party are not abrogated because of his or her professional status. (Former Rule 2-100, Discussion.)
In San Francisco Unified School Dist. ex rel. Contreras v. First Student, Inc. (2013) 213 Cal.App.4th 1212, at 1234-1237 [Contreras] the court, with seeming approval, quoted from California State Bar Formal Opinion No. 1993-131 (1993) stating:
[A]ttorneys ‘need not discourage clients from direct communication with one another’ and ‘[i]nformation obtained by a client from an opposing party represented by counsel where there has been no prohibited direct or indirect communication under rule 2-100 may properly be communicated by the client to the attorney and used by the attorney as is otherwise appropriate.[¶] …[¶] [On the other hand,] [w]hen the content of the communication to be had with the opposing party originates with or is directed by the attorney, [the communication] is prohibited by rule 2-100. Thus, an attorney is prohibited from drafting documents, correspondence, or other written materials, to be delivered to an opposing party represented by counsel even if they are prepared at the request of the client, are conveyed by the client and appear to be from the client rather than the attorney….
[¶] An attorney is also prohibited from scripting the questions to be asked or statements to be made in the communications or otherwise using the client as a conduit for conveying to the represented opposing party words or thoughts originating with the attorney.’ In general, ‘counsel should be guided by the overriding purpose of rule 2-100, which is to prohibit one side to a dispute from obtaining an unfair advantage over the other side as a result of having ex-parte access to a represented party.’ (Opn. No. 1993-131.)
(Contreras, supra, 213 Cal.App.4th 1212, at 1234-1235.)
The Contreras Court also reviewed ABA Opinion No. 11-461 which interpreted then rule 2-100’s ABA counterpart Model Rule 4.2 which it found takes a “more liberal approach” as to where the line must be drawn. ABA Opinion No. 11-461 allows attorneys to actively counsel their clients about planned communications with represented parties and to draft some documents for use in the communications. (Contreras, supra, at 1235.)
Nevertheless, after reviewing several cases from other jurisdictions which precluded a lawyer from preparing legally binding documents such as an affidavit or drafting a release of liability for the client to present to a party, the Contreras Court observed:
These decisions are consistent with the general principle that attorneys should not advise their clients regarding party communications in a manner that violated the underlying purpose of the rule: preparing legally binding documents for an opposing party to sign takes advantage of the fact that the party is being contacted without knowledge, consent or presence of her legal representative.
(Contreras, supra, at 1236.)
Since the Contreras court found there was no evidence that the disputed contacts were at the behest of counsel or that counsel had coached the individual plaintiffs in any way except to inform them they had the right to engage in such communications, its discussion may be characterized as non-binding dictim, leaving the lawyer without a “bright line” test in how to comply with Rule 4.2 (formerly CRPC 2-100), and needing to continue to exercise particular caution in this area.
Rule 4.2’s “no contact” rule also puts ethical limits on how, through social media websites such as Facebook, lawyers may obtain information that is not publicly available, particularly from opposing parties who are represented by counsel. (See Tuft, Peck & Mohr, Cal. Prac. Guide: Professional Responsibility, ¶¶8-757 – 8-760 [pgs. 8-145 and 8-146] (The Rutter Group 2021.)
Concerning a lawyer’s Facebook “friend request,” the San Diego County Bar Association Legal Ethics Committee in Opinion 2011-2, construing former rule 2-100, concluded:
An attorney’s ex parte communication to a represented party intended to elicit information about the subject matter of the representation is impermissible no matter what words are used in the communication and no matter how that communication is transmitted to the represented party. We have further concluded that the attorney’s duty not to deceive [citing ABA Model Rules 4.1(a) and 8.4(c) which have since been adopted in California] prohibits him from making a friend request even of unrepresented witnesses without disclosing the purpose of the request. Represented parties shouldn’t have “friends” like that and no one – represented or not, party or non-party – should be misled into accepting such a friendship.
Applicability of Implied Consent
The California State Bar’s Standing Committee on Professional Responsibility and Conduct (COPRAC) concluded in State Bar Formal Opinion No. 2011-181 that consent under Rule 4.2’s predecessor, former Rule 2-100, need not be express but may be implied. Such consent may be implied by the facts and circumstances surrounding the communication with the represented party including the following: whether the communication is within the presence of the other attorney; prior course of conduct; the nature of the matter; how the communication is initiated and by whom; the formality of the communication; the extent to which the communication might interfere with the attorney-client relationship; whether there exists a common interest or joint defense privilege between the parties; whether the other attorney will have a reasonable opportunity to counsel the represented party with regard to the communication contemporaneously or immediately following such communication; and the instructions of the represented party’s attorney. (Cal. State Bar Formal Opn. No. 2011-181.)
COPRAC cautioned:
[W]e do not mean to suggest that the consent requirement of the rule be taken lightly nor that it is appropriate for attorneys to stretch improperly to find implied consent. Further, even where consent may be implied, it is good practice to expressly confirm the existence of the other attorney’s consent, and to do so in writing. . . . Given the purpose and strictness of the rule, it is highly perilous to engage in otherwise prohibited communication solely in reliance on an ‘implied’ consent of the opposing counsel. A lawyer doing so should immediately seek written ratification from opposing counsel, but recognize that counsel may not at all agree such consent was implied. See also Association of the Bar of the City of New York Committee on Professional and Judicial Ethics, Formal Opinion 2009-1, http://www.nycbar.org/ethics/ethics-opinions-local/2009-opinions/787-the no-contact-rule-and-communications-sent-simultaneously-to-represented-persons-and-their-lawyers: To avoid any possibility of running afoul of the no-contract rule, the prudent course is to secure express consent.
(Cal. State Bar Formal Opn. No. 2011-181, fn. 4; emphasis added.)
“About the Subject of the Representation”
Rule 4.2 does not prohibit communications with a represented person concerning matters outside the representation. (Rule 4.2, Comment [4].) Similarly, a lawyer who knows that a person is being provided with limited scope representation is not prohibited from communicating with that person regarding matters outside the scope of the limited representation. (Id.) **No portion of this summary is intended to constitute legal advice. Be sure to perform independent research and analysis. Any views expressed are those of the author only and not of the SDCBA or its Legal Ethics Committee.**
[i] (State Bar Commission Provisional Report And Recommendation: Rule 4.2 [2-100] https://board.calbar.ca.gov/docs/agendaItem/Public/agendaitem1000016831.pdf .)
[ii] CRPC Rule 4.2, in full, provides:
(a) 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.
(b) In the case of a represented corporation, partnership, association, or other private or governmental organization, this rule prohibits communications with:
(1) A current officer, director, partner,*or managing agent of the organization; or
(2) A current employee, member, agent, or other constituent of the organization, if the subject of the communication is any act or omission of such person* in connection with the matter which may be binding upon or imputed to the organization for purposes of civil or criminal liability.
(c) This rule shall not prohibit:
(1) communications with a public official, board, committee, or body; or
(2) communications otherwise authorized by law or a court order.
(d) For purposes of this rule:
(1) “Managing agent” means an employee, member, agent, or other constituent of an organization with substantial* discretionary authority over decisions that determine organizational policy.
(2) “Public official” means a public officer of the United States government, or of a state, county, city, town, political subdivision, or other governmental organization, with the comparable decision-making authority and responsibilities as the organizational constituents described in paragraph (b)(1).
As used in Rule 4.2 the term “person” has the meaning stated in Evidence Code 175 which provides: “Person” includes a natural person, firm, association, organization, partnership, business trust, corporation, limited liability company, or public entity.” (CRPC Rule 1.0.1 (g).)
As used in Rule 4.2, the term “knows” means “actual knowledge of the fact in question. A person’s knowledge may be inferred from circumstances.” (CRPC Rule 1.0.1 (f); emphasis added.) See also (Gomes v. Byrne (1959) 51 Cal.2d 418, 421 (“actual knowledge … may be inferred from the circumstances.”)
[iii] CRPC Rule 4.3 “Communicating with an Unrepresented Person,” provides:
(a) In communicating on behalf of a client with a person who is not represented by counsel, a lawyer shall not state or imply that the lawyer is disinterested. When the lawyer knows or reasonably should know that the unrepresented person incorrectly believes the lawyer is disinterested in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding. If the lawyer knows or reasonably should know that the interests of the unrepresented person are in conflict with the interests of the client, the lawyer shall not give legal advice to that person, except that the lawyer may, but is not required to, advise the person to secure counsel.
(b) In communicating on behalf of a client with a person who is not represented by counsel, a lawyer shall not seek to obtain privileged or other confidential information the lawyer knows or reasonably should know the person may not reveal without violating a duty to another or which the lawyer is not otherwise entitled to receive. (Asterisks omitted.)