Most lawyers have a general understanding of the “no-contact rule” — namely that under state versions of Model Rule 4.2, with a few exceptions, you can’t communicate directly on the subject of the representation with someone you know is represented by counsel. But where does in-house counsel fit in? Is in-house counsel “fair game” for ex parte contact by opposing counsel?
Last month, the Virginia Supreme Court approved Legal Ethics Opinion 1890, and answered “Yes,” in an opinion that also covered some other issues of concern to in-house counsel.
No need for protection
Even in the current legal services market, where there is a trend for corporate clients to in-source legal work, many continue to rely on outside help for litigation and other matters, setting up a seeming choice for an opponent’s counsel — reach out to a company’s inside lawyer, or contact outside counsel.
The new Virginia opinion lines up with several other authorities in confirming that contacting in-house counsel can be an ethically-permitted option, even under the “no contact” rule.
This question might come up in a couple other ways, too: when in-house counsel wants to contact an opponent’s outside counsel, who must decide whether she can participate in the communication; or when in-house counsel for one party wants to communicate with in-house counsel for another party, when both are represented by outside counsel.
In confirming that a lawyer “is generally permitted to communicate with a corporate adversary’s in-house counsel about a case in which the corporation has hired outside counsel,” the Virginia State Bar Association’s Standing Committee on Legal Ethics referred to the purpose of Rule 4.2. The no-contact rule is “to protect uncounseled persons against being taken advantage of by opposing counsel” and to safeguard the client-lawyer relationship from interference, the Committee said.
Contact between the in-house lawyer and opposing counsel does not present either of these dangers, said the Committee. It is not likely that in-house counsel would be manipulated into making harmful disclosures, or do so inadvertently. Therefore, the Committee concluded, the in-house lawyer does not need the protection of the no-contact rule.
Mainstream view, and some nuances
Other jurisdictions have arrived at conclusions similar to the Virginia Ethics Committee’s. See, e.g., Op. 331 (D. C. Bar Ass’n Oct. 2005) (generally, no prior consent needed from company’s outside counsel in order for a lawyer to communicate with in-house counsel on the subject of the representation); In re Grievance Proceeding, 2002 U.S. Dist. LEXIS 18417, 2002 WL 31106389 (D. Conn. July 19, 2002) (general counsel of a corporation did not constitute a “party” for purposes of Connecticut Rule 4.2, and protecting attorney-client relationship did not require bar against ex parte contact); Op. 2007-1 (N.Y. City Bar Ass’n Jan. 1, 2007) (discussing various scenarios and concluding under former disciplinary rule that lawyer with objective good faith belief that in-house counsel is acting as entity’s lawyer may communicate with in-house counsel of a party known to be represented by outside counsel).
Likewise, the ABA’s Formal Op. 06-443 (Aug. 5, 2006), says that Model Rule 4.2 “generally does not prohibit” outside counsel from communicating ex parte with an opposing party’s inside counsel about the subject of the representation. See also Restatement (Third) of the Law Governing Lawyers § 100 cmt. [c].
There are some nuances, however, which Rule 4.2 and/or the ABA opinion point to.
- an adverse attorney should not communicate without consent with inside counsel who is part of the company’s “constituent” group for the matter –who participated, for instance, in giving business advice or in making decisions that gave rise to the dispute;
- contacting an organization’s in-house counsel after being asked not to might violate the no-contact rule; and
- Rule 4.2 and its comments describe permissive exceptions including contacts that are authorized by law (such as the constitutional right to petition the government) or a court order, or that don’t relate to the subject of the dispute.