Ethics Opinion 331
Contact With In-House Counsel Of A Represented Entity
In general, a lawyer may communicate with in-house counsel of a represented entity about the subject of the representation without obtaining the prior consent of the entity’s other counsel.
Applicable Rule
- Rule 4.2 (Communication Between Lawyer and Opposing Parties)
Ethics rules generally prohibit lawyers from communicating with a person about the subject of the representation with a person the lawyer knows is represented by another lawyer with respect to that matter.1 Several members of the committee have encountered questions from members of the bar about whether the D.C. version of this prohibition, Rule 4.2 of the D.C. Rules of Professional Conduct, would bar a lawyer from communicating with an organization’s in-house counsel about a matter when that organization is represented by outside counsel on the same matter. While no formal inquiry has been made to the committee, we believe that the issue comes up sufficiently frequently to warrant an opinion.
The goal of Rule 4.2 is clear. In explaining it to the Court of Appeals when proposing the present version, the D.C. Bar Board of Governors said that its "basic purpose. . . is to prevent a client, who on the one hand is presumed to be relatively unsophisticated legally but who on the other hand has ultimate substantive control over the matter, from making uninformed or otherwise irrational decisions as a result of undue pressure from opposing counsel." Proposed Rules of Professional Conduct and Related Comments 187 (Nov. 19, 1986) (“Jordan Committee Report”); see also Restatement, § 99, comment b.
We start by noting that the foregoing rationale for the anti-contact rule does not apply where a lawyer desires to contact an organization’s in-house counsel. Such a communication would be lawyer to lawyer, and concerns about protecting the organization from overreaching and deception by the lawyer initiating the communication should not apply. Nor is it likely that in-house counsel would inadvertently make disclosures harmful to the organization, as a non-lawyer might do.2 Therefore, if the Rule forbids contact with those in-house counsel who are representing their client on the matter in question, that would be an unintended result. And we do not believe that the text of the Rule compels that result.
The structure of the D.C. version of rule 4.2 is more elaborate than the ABA Model Rule 4.2, which has only one sentence. The D.C. version has four subparagraphs, of which the first three are pertinent here. Subparagraph (a), which is similar to ABA Model Rule 4.2, generally prohibits a lawyer from communicating about the subject of the representation with "a party known to be represented by another lawyer in the matter," unless the lawyer has the prior consent of that other lawyer or is authorized by law to make the communication. The significance of the other party being "known to be represented by another lawyer" within the meaning of subparagraph (a) is quite clearly that a lawyer’s communication should be with that other lawyer rather than directly with the party - because, as just mentioned, the purpose of the Rule is to avoid situations in which a lawyer may take advantage of a non-lawyer by directly communicating with that person. When a party is represented by in-house counsel there would not seem to be any reason why a lawyer could not communicate with that counsel.
Subparagraphs (b) and (c) then deal with specific issues surrounding parties that are organizations. Subparagraph (b) provides that a lawyer may communicate on the subject of the representation with "a nonparty employee of the opposing party" without obtaining the consent of the opposing party’s lawyer.3 A non-party employee is one who does not have the authority to speak for, and bind, the organization with respect to the representation in question; thus, a non-party employee cannot make the kind of unwise or pressured decisions for the organization that the Rule is designed to prevent. See Comment [3] to Rule 4.2.4 Subparagraph (c) then defines an organization "party" as including "any person, including an employee of a party organization, who has the authority to bind a party organization as to the representation to which the communication relates." Thus, it is the ability of an organization employee to bind the party organization as to the representation itself that is critical in defining "party."
As just noted, considering subparagraph (a) and the purpose of the Rule, it would seem that an opposing lawyer could communicate with in-house counsel who was representing the other party. Based on language in subparagraph (c) (defining "party" as any employee "who has the authority to bind a party organization as to the representation to which the communication relates"), an argument could be made that the in-house counsel who are representing their client in that matter may fall under that definition of "party" because, by virtue of that very representation, they can to some extent speak for and bind their client, and that a lawyer could not communicate with in-house counsel without the consent of outside counsel. We find this argument unpersuasive because it ignores the drafters’ clear intentions expressed in the text of subparagraph (a), it would create a restriction on communication that is inconsistent with and counterproductive to the Rule’s purpose, it would not seem to have any perceptible purpose, and it would lead to peculiar and unworkable results.
Most importantly, such an interpretation would run counter to the text of subparagraph (a). As we have noted, the critical point under subparagraph (a) is the fact that the party is "represented by another lawyer," and the clear requirement of subparagraph (a) is that a lawyer must communicate with a party, if at all, by communicating with that party’s lawyer. Where it is in-house counsel who is representing a party, it is the clear import of subparagraph (a) that the lawyer should communicate with that counsel.
It is true that subparagraph (a) does not expressly say that the communication must be made to the lawyer representing the opposing party where there is such a lawyer. Nonetheless that is its clear implication - where the Rule forbids communication with a represented party there is no one else, other than counsel providing that representation, to communicate with.5 To the extent it might be argued that subparagraph (a) is not fully or sufficiently explicit to counter a literalistic reading of subparagraph (c) with respect to in house counsel, we recur to the fact that Scope note [1] instructs us that these Rules are to be read as rules of reason that "should be interpreted with reference to the purposes of legal representation and of the law itself." Reading Rule 4.2(c) to define an in-house lawyer as the "party" simply because (as is likely the only real distinction in many circumstances) house counsel get paid a salary while outside counsel are paid fees would serve no discernable purpose, is foreign to the purposes for which the Rule was written, and would bring about peculiar and clearly unintended results, to such an extent that we could not interpret the Rule reasonably to bring about that result.
It is not possible to discern any sensible policy that would support a reading of subparagraph (c) as forbidding communication with house counsel while allowing it for outside counsel. The fact that in-house counsel may have the power to bind the party does not distinguish in-house counsel from outside counsel: as the Restatement shows, any lawyer representing a party, whether in-house or not, will have at least some power to speak for, or bind, that party within the scope of a representation Restatement at §§ 26, 27. Otherwise, communication with a party’s lawyer would be useless because what the lawyer said would not be reliable; indeed it is precisely because a party’s counsel can reliably speak for the party that Rule 4.2(a) can require a lawyer to speak to a party’s lawyer rather than to the party itself. It does not appear that there was any reason why the term "authority to bind a party organization" was included in the Rule’s definition of "party" except in order to deal with the familiar issue of which natural persons can in particular instances make decisions that will bind an artificial person - an organization - within its sphere of operation. That is the only issue discussed in the pertinent comments to D.C. Rule 4.2 (comments [2] and [3]). It is the only issue discussed in the pertinent sections of the Board of Governors’ recommendations to the D.C. Court of Appeals.6 See Jordan Committee Report at 187 & 189-91.
Moreover, if Rule 4.2(c) were read to forbid a lawyer to contact in-house counsel representing an opponent, that would lead to an absurd result whenever (as frequently occurs) the organization had decided not to hire outside counsel. If in-house counsel were considered to be the "party," then under this interpretation opposing counsel could not communicate with the organization at all; subparagraph (a) would prevent the lawyer from speaking directly to senior management of the organization because the organization is clearly being represented by in-house counsel, yet subparagraph (c) would bar the lawyer from talking to in-house counsel because, as one who could "bind" the organization as to the representation, the in-house counsel would be considered to be the "party." It could hardly be contended that this was an intended result, and it would certainly be an unworkable result.7
It might be argued that a distinction can be drawn between the activities of in-house and outside counsel because counsel who are employees might be more likely to be given powers by their employers that extend beyond strictly counsel functions. For example, in-house counsel might be given the power to settle cases without referring to others in the organization. There are several reasons why such an approach based on such a perceived distinction would not be warranted. First, given the purpose of the Rule, which is to prevent lawyers from communicating directly with parties who are nonlawyers where those parties are represented by counsel, this distinction, even if it exists, is irrelevant. That an in-house lawyer may have some additional functions does not alter the fact that it is that lawyer who is representing the party. Second, it is not clear that the distinction does exist - a client may give any lawyer, in-house or outside, functions that lawyers do not usually have and that are usually exercised by a party, such as authority to settle a dispute. See Restatement § 22 comments c and e, § 27 comment d. It is not at all clear whether it is more or less common to find such authority in the hands of counsel who are employees as opposed to those who are not.
Similarly it might be claimed that allowing an opposing counsel to pick and choose the lawyer with whom to communicate among in-house and outside counsel representing the other party allows the lawyer leeway that might be abused. For example a lawyer might call opposing lawyer A to ask for an extension while knowing that opposing lawyer B would likely reject it for a reason that A may not be aware of. But this is not a problem that Rule 4.2 is aimed at or is suited to solve. The Rule is aimed at the problems that may flow when a lawyer communicates directly with a party even though that party is represented by counsel. The problem of one lawyer trying to take advantage of the fact that an opponent may have multiple lawyers with varying degrees of knowledge or involvement is a different issue - and should not be addressed in a haphazardly incomplete fashion by declaring one of the opposing lawyers to be the party, which, as we have discussed, has nothing to do with the purpose of the Rule and creates other difficulties.8
In sum, we conclude that a lawyer who is also an employee of a client organization represents that client; the in-house counsel is not also the "party" within the meaning of D.C. Rule 4.2(c). The fact that in-house counsel represent their client in a matter does not mean that Rule 4.2 prohibits opposing counsel from communicating with them, even when the client has also retained outside counsel on the same matter.9
This result is consistent with the authorities that have considered the issue under versions of the Rule that are similar to the Model Rule and do not include subparagraphs (b) or (c), providing further reason to interpret the D.C. Rule to avoid any conclusion that a contrary result was an unstated purpose of our rule. The Restatement (§ 100, comment c) concludes that an opposing lawyer’s contact with in-house counsel of a corporation is generally not barred by the anti-contact rules that apply in the United States. The same result was reached by the District of Connecticut in In re Grievance Proceeding, 2002 WL 31106389 (D. Conn. 2002). That court concluded that in those circumstances an in-house lawyer "does not fall within the plain meaning of ’party’ for purposes of [Connecticut’s version of Rule 4.2]." Id. at *3.10 The District Court noted that the purpose of Rule 4.2 is "to protect the lawyer-client relationship by preventing opposing counsel from taking advantage of a non-lawyer’s relative unfamiliarity with the law or prompting a non-lawyer’s inadvertent disclosure of information against interest." Id. The court added that communication with a general counsel generally will not raise the same concerns as communication with a non-lawyer employee. In holding that Rule 4.2 does not prohibit the communication, the court noted that hiring an outside counsel generally will not transform the general counsel from attorney to party for purposes of Rule 4.2.
We agree with the result reached by the authorities cited above and conclude that, in the District of Columbia, a lawyer generally is not proscribed by D.C. Rule 4.2 from contacting in-house counsel even though the entity is represented by outside counsel.11 Of course, if the in-house counsel is represented personally in a matter, Rule 4.2 would not permit a lawyer to communicate with that in-house counsel regarding that matter, without the consent of the in-house counsel’s personal lawyer.
Approved: September 2005
Published: October 2005
1. Restatement of the Governing Lawyers § 99 (Restatement); Rule 4.2 of the ABA Model Rules of Professional Conduct.
2. It is possible that an organization’s outside counsel may complain that, by bypassing outside counsel to discuss a matter with in-house counsel, the lawyer has interfered with the outside counsel’s relationship with the organization. However, D.C. Rule 4.2 does not address those considerations, and we do not believe that they raise any issue under the D.C. Rules of Professional Conduct.
3. But subparagraph (b) further provides that before a lawyer may talk to such a non-party employee, the lawyer must disclose the lawyer’s identity and the fact that the lawyer represents a party with a claim against the non-party employee’s employer.
4. Indeed, comment [3] explains that an opposing lawyer may talk to an organization’s employee who has "the authority to bind the organization with respect to matters underlying the representation" without the consent of the organization’s counsel "if [the employee does] not also have authority to make binding decisions regarding the representation itself." See Comment [3], Rule 4.2.
5. Subparagraph (c) does as a practical matter require communication with the opposing party’s lawyer. If the lawyer seeking communication must communicate with the opposing party, cannot communicate with the party because of Rule 4.2, and may communicate with the counsel representing the party, then the lawyer must communicate with counsel. "A lawyer representing a client in a matter usually may not deal directly with others who have their own counsel in the matter. The lawyer must communicate through their counsel exclusively." ABA/BNA Lawyer’s Manual on Professional Conduct at 71:301 (2004) (emphasis added). Effectively forcing one goal by making other courses impossible is a well-known legal mechanism. Cf. Lumley v. Wagner, 42 Eng. Rep. 687 (1852) (even though court believed it could not require a singer to perform for a company to which the singer was contractually bound, court could, and did, enjoin her from performing for anyone else during the relevant period).
6. This significance of this point appears with more than usual clarity in these circumstances. As noted above, the ABA Model Rule 4.2 contains only a single sentence with approximately the language of D.C. Rule 4.2(a). The Jordan Committee added subparagraphs (b) and (c) and explained its reasons for doing so at length; the portion of this discussion pertaining to non-governmental parties is at pages 189-191 of the Jordan Committee Report. Nothing in this discussion even remotely addresses any concern over communications with counsel depending on whether they are in house or outside. It is obvious from a reading of this portion of the Committee’s report that any effect of constricting a lawyer’s ability to communicate with in-house counsel representing an opponent would be unintended by the drafters.
7. The phrase "represented by another lawyer" in subparagraph (a) clearly refers only to counsel other than the lawyer seeking to make the contact; it cannot be read to refer to in-house counsel when no outside counsel has been hired yet not to refer to in-house counsel when outside counsel has been hired.
8. This "solution" of regarding in-house counsel as the "party" would be incomplete and in some cases counterproductive. The same kind of attempt to pick and choose whom to call can occur when this interpretation of the Rule would have no effect, such as when are multiple law firms (for example where one serves as local counsel) and no house counsel involved in the representation. Similarly the opponent is often represented only by in-house counsel with more than one in-house lawyer is involved in the representation. Finally, it not infrequently occurs that day-to-day representation is provided by house counsel but a law firm is also involved on a more strategic or coordinating level. Here an opposing lawyer might seek to avoid calling house counsel and might call a lawyer in the firm to make a request because of that lawyer’s lack of familiarity with day-to-day developments. In such situations deeming in house counsel to be the party and forcing communications to be with the law firm would constitute a distinct disadvantage to the party.
9. The D.C. Bar Rules of Professional Conduct Review Committee has recommended adding a comment to Rule 4.2 that would expressly conclude that "Because this Rule is primarily focused on protecting represented persons unschooled in the law from direct communications from counsel for an adverse person, consent of the organization’s lawyer is not required where a lawyer seeks to communicate with in-house counsel of an organization." Proposed Amendments to the D.C. Rules of Professional Conduct: Report and Recommendations, at 151 (January 31, 2005). Since comments to the Rules explain and illustrate them rather than providing new substance (see Scope note [6] to the Rules), the Rules Review Committee’s recommendation of this new comment means that that Committee interprets Rule 4.2 consistently with this opinion.
10. § 100, Comment c. A similar result was reached in In re James Finkelstein, 901 F.2d 1560 (11th Cir. 1990).
11. The Committee notes, however, that even though this opinion concludes that a lawyer may generally initiate contact with in-house counsel, in-house counsel is not obligated to engage in the communication and may direct the lawyer to communicate only with the organization’s outside counsel.
