3

Question 1

No contact rule 4.2

Answer 1

Applies to all stages of a relationship even if litigation is not contemplated. Cannot talk to another party when represented by an attorney

Question 2

Critical points

Answer 2

• presupposes attorney client relationship

- must know that the person is represented

Question 3

In house counsel under no contact

Answer 3

It is not the rule that the company is always represented by in house counsel. In house counsel must be notified of the issue so then the company would become represented on that issue.

Question 4

Class actions under no contact

Answer 4

difficult because you don’t know who is represented before the class is certified

Question 5

Scope of no contact rule

Answer 5

The contact cannot regard the subject of the representation. You can contact the individual about a separate issue.

Question 6

There are exceptions

Answer 6

Prosecutors are sometimes allowed to talk to a represented person if investigating the case.

Question 7

Third parties

Answer 7

Agent of lawyer can’t ask what the lawyer would normally ask.

Question 8

Can clients waive the no contact rule?

Answer 8

There is a paternalism vs. autonomy problem. Represented parties can contact each other in some situations.

Question 9

Employees under no contact

Answer 9

An employee can get out from the no contact rule by hiring their own personal lawyer. There is a major distinction between the ac relationship and the no contact rule.

Question 10

Government under the no contact rule

Answer 10

Government has no contact rule but is greatly constrained due to constitutional right to petition the government. A lawyer can contact the government about policy issues vs specific litigation and can give notice.

Question 11

Testers vs. investigators R. 8.4

Answer 11

Varies when the investigation becomes a lie. Testers become investigators if the they record the conversations and talk to executives.

Question 12

Split when client hires investigators

Answer 12

Some say that the investigator is the clients agent some say the individual is a separate entity.

Question 13

No contact rule and companies

Answer 13

there is a key disadvantage visited on persons/corporation if contacted (directly involved)

Question 14

Niesig Test

Answer 14

An attorney may conduct ex part interviews with a corporate adversary’s employees if the employers do not have the power to bind the corporation.

Question 15

Restatement test

Answer 15

Employees of a corporation are:

• anyone who can direct legal counsel
• people who have the power to settle the case
• anyone whose actions can be imputed to the corporation
• anyone whose statements can bind the corporation

Question 16

Control group test

Answer 16

only controlling individuals in corporation are covered by the no contact rule.

Question 17

Government under no contact rule

Answer 17

A government pay under the rule should be defined as

1. any official who has the authority to bind the government in a matter that could be litigated.
2. No restrictions should apply to communication with other government employees, except that the attorney is required to disclose the identity and the nature of the representation

Question 18

No contact in criminal matters

Answer 18

Rule 4.2 applies in both situations. No contact also applies to prosecutors.

Question 19

Remedies for violation

Answer 19

1. Suppress the evidence
2. dismissal of the charges
3. The prosecutor is disbarred

Question 20

Unresolved problem

Answer 20

Defense attorney’s maintain that police should treat all defendants as having counsel the moment you are arrested because if they do not hire one, they will be appointed one.

Question 21

Improper or accidental acquisition of information R 4.4b

Answer 21

If you accidentally get information suggesting that the other side is withholding documents you should :

1. not look at the document but tell the other side that there are missing docs
2. notify the other side and go to court and ask to look at the documents in camera.

Question 22

ABA division between inadvertent and purposeful information

Answer 22

Inadvertent receipt of other counsel’s information then you must send notice when you reasonably know or reasonably should know that you received the document inadvertently and comply with their instructions.

Question 23

ABA standard

Answer 23

1. Don’t read more than you accidentally did or to determine if it is privileged.
2. Notify the other counsel.
3. Do what counsel says.
4. You can still use that information that you saw.

Question 24

States on the improper acquisition of material.

Answer 24

All over the place.

Question 25

Terrell on improper acquisition

Answer 25

Culpability (purposeful vs. accidental) and amount of information

VS

Impact on litigation (look at pg. 8)

Question 26

Metadata

Answer 26

ABA says that you can use metadata but the states go both ways.