Utah State Bar
Ethics Advisory Opinion Committee
Opinion Number 15-02
Issued February 10, 2015
PROPRIETY OF EX PARTE CONTACT WITH INDIVIDUALS WITHIN AN ORGANIZATION
1. May an attorney representing a party in pending or existing litigation contact servants, agents, and employees of an organization, which is the opposing party, to discuss issues directly related to the litigation, if the attorney is aware the organization is represented by counsel in the matter? Is it ethical for an attorney to make contact directly with in-house or corporate counsel, even if the attorney is aware that the organization is represented by outside counsel in the matter? Is it ethical for an attorney to send a copy of correspondence or email to an organization’s employee where the original is directed to opposing counsel?
2. The query before the Committee relates to the issue of the propriety of an attorney making contact with a servant, agent, or employee of an organization which is potentially or is in fact involved in litigation, where the contacting attorney knows or has reason to know that the organization is represented by counsel. The related question pertains to the same issue, except that the contact in question is with the organization’s in-house or corporate counsel. Lastly, is it ethical for an attorney to send a copy of correspondence to an employee, the original of which is directed to opposing counsel for an organization?
3. Communications, concerning the subject matter of anticipated, proposed or current litigation, are improper, if the individual being contacted is either (1) an employee of the target organization within the current “control group,” or (2) the individual’s acts, omissions or statements in the matter might be imputed to the opposing organization. Contact with in-house counsel may be permissible, depending on the circumstances, as discussed below.
4. This opinion involves what has sometimes been referred to as the “no contact without consent” rule. Utah Rules of Professional Conduct (URPC), Rule 4.2, Communication with Persons Represented by Counsel, states the general rule as follows:
(a) General Rule. 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. Notwithstanding the foregoing, an attorney may, without such prior consent, communicate with another’s client if authorized to do so by any law, rule, or court order, in which event the communication shall be strictly restricted to that allowed by the law, rule or court order, or as authorized by paragraphs (b), (c), (d) or (e) of this Rule.
5. As a general matter, subject to the exception that a lawyer may “communicate with another’s client if authorized to do so by any law, rule, or court order,” Rule 4.2 requires that a lawyer 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.” Rule 4.2(a) (emphasis added). The Rule “applies to communications with any person who is represented by counsel concerning the matter to which the communication relates,” and “applies even though the represented person initiates or consents to the communication. A lawyer must immediately terminate communication with a person if, after commencing communication, the lawyer learns that the person is one with whom communication is not permitted by this Rule.” Comment (3) and (4) to Rule 4.2. Rule 4.2 is broadly consistent with the general rules set forth in § 99, A Represented Nonclient – The General Anti-Contact Rule, The Restatement (Third) of the Law Governing Lawyers; See also The Law of Lawyering, Hazard, Hodes & Jarvis, §§ 4.01 and 41.02.