The Rules of Contact: Client Employees and Former Employees, and Represented and Unrepresented Others
Rule 3.4 (Fairness to Opposing Party and Counsel) looks at the issues from the viewpoint of what is acceptable conduct by you in limiting access of an opposing party and their counsel to otherwise relevant information. Rule 4.2 flips the perspective to address how far a lawyer may go in communicating with a represented party. Let's walk through the various possibilities.
March 10, 2023 at 12:00 PM
8 minute read
Ethics
Mark Hinderks of Stinson, LLP. Courtesy photo
Dear Ethics Lawyer
This column, written by Mark Hinderks, of Stinson LLP, focuses on ethics questions. The discussion here is based on the ABA Model Rules of Professional Conduct, but the Model Rules are often adopted in different and amended versions, and interpreted in different ways in various places. Always check the rules and authorities applicable in your relevant jurisdiction—the result may be completely different.
Question: I am a confused in-house lawyer with a basket of questions relating to contacting and having conversations with various types of persons in connection with disputes or transactional discussions I become involved with on behalf of my company.
Could you please review the rules that apply to communications with employees, former employees and third parties? Do these rules also prevent me from advising or ghostwriting for my nonlawyer client representative about having direct conversations in any of these scenarios? What if I am not acting as a lawyer but as a business person—does that matter? Help me bring some order to this chaos!
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