3 Flashcards
No contact rule 4.2
Applies to all stages of a relationship even if litigation is not contemplated. Cannot talk to another party when represented by an attorney
Critical points
- presupposes attorney client relationship
- must know that the person is represented
In house counsel under no contact
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.
Class actions under no contact
difficult because you don’t know who is represented before the class is certified
Scope of no contact rule
The contact cannot regard the subject of the representation. You can contact the individual about a separate issue.
There are exceptions
Prosecutors are sometimes allowed to talk to a represented person if investigating the case.
Third parties
Agent of lawyer can’t ask what the lawyer would normally ask.
Can clients waive the no contact rule?
There is a paternalism vs. autonomy problem. Represented parties can contact each other in some situations.
Employees under no contact
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.
Government under the no contact rule
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.
Testers vs. investigators R. 8.4
Varies when the investigation becomes a lie. Testers become investigators if the they record the conversations and talk to executives.
Split when client hires investigators
Some say that the investigator is the clients agent some say the individual is a separate entity.
No contact rule and companies
there is a key disadvantage visited on persons/corporation if contacted (directly involved)
Niesig Test
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.
Restatement test
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