(b) During the course of representing a client, a lawyer may communicate about the subject of the representation with a nonparty employee of an organization without obtaining the consent of that organization’s lawyer. If the organization is an adverse party, however, prior to communicating with any such nonparty employee, a lawyer must disclose to such employee both the lawyer’s identity and the fact that the lawyer represents a party that is adverse to the employee’s employer.
(c) For purposes of this rule, the term “party” or “person” includes any person or organization, including an employee of an organization, who has the authority to bind an organization as to the representation to which the communication relates.
(d) This rule does not prohibit communication by a lawyer with government officials who have the authority to redress the grievances of the lawyer’s client, whether or not those grievances or the lawyer’s communications relate to matters that are the subject of the representation, provided that in the event of such communications the disclosures specified in (b) are made to the government official to whom the communication is made.
Comment
[1] This rule covers any person, whether or not a
party to a formal proceeding, who is represented by counsel concerning
the matter in question.
[2] This rule does not prohibit communication with
a person or party, or an employee or agent of an organization, concerning
matters outside the representation. For example, the existence of a
controversy between two organizations does not prohibit a lawyer for
either from communicating with representatives of the other regarding
a separate matter. Also, parties to a matter may communicate directly
with each other and a lawyer having independent justification for communicating
with the other party is permitted to do so. In addition, a lawyer is
not prohibited from advising a client concerning a communication that
the client is legally entitled to make, provided that the client communication
is not solely for the purpose of evading restrictions imposed on the
lawyer by this rule.
[3] In the case of an organization, and other than
as noted in Comment [5], this rule prohibits communication by a lawyer
for one party concerning the matter in representation with persons having
the power to bind the organization as to the particular representation
to which the communication relates. If an agent or employee of the organization
with authority to make binding decisions regarding the representation
is represented in the matter by separate counsel, the consent by that
agent’s or employee’s counsel to a communication will be
sufficient for purposes of this rule.
[4] The rule does not prohibit a lawyer from communicating
with employees of an organization who have the authority to bind the
organization with respect to the matters underlying the representation
if they do not also have authority to make binding decisions regarding
the representation itself. A lawyer may therefore communicate with such
persons without first notifying the organization’s lawyer. See
D.C. Bar Legal Ethics Committee Opinion No. 129. But before communicating
with such a “nonparty employee,” the lawyer must disclose
to the employee the lawyer’s identity and the fact that the lawyer
represents a party with a claim against the employer. It is preferable
that this disclosure be made in writing. The notification requirements
of Rule 4.2(b) apply to contacts with government employees who do not
have the authority to make binding decisions regarding the representation.
[5] 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. If individual in-house counsel is represented
separately from the organization, however, consent of that individual’s
personal counsel is required before communicating with that individual
in-house counsel.
[6] Consent of the organization’s lawyer is
not required where a lawyer seeks to communicate with a former constituent
of an organization. In making such contact, however, the lawyer may
not seek to obtain information that is otherwise protected.
[7] This rule also does not preclude communication
with a represented person who is seeking advice from a lawyer who is
not otherwise representing a client in the matter.
[8] This rule 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.
[9] This rule does not apply to the situation in which
a lawyer contacts employees of an organization for the purpose of obtaining
information generally available to the public, or obtainable under the
Freedom of Information Act, even if the information in question is related
to the representation. For example, a lawyer for a plaintiff who has
filed suit against an organization represented by a lawyer may telephone
the organization to request a copy of a press release regarding the
representation, without disclosing the lawyer’s identity, obtaining
the consent of the organization’s lawyer, or otherwise acting
as paragraphs (a) and (b) of this rule require.
[10] Paragraph (d) recognizes that special considerations
come into play when a lawyer is seeking to redress grievances involving
the government. It permits communications with those in government having
the authority to redress such grievances (but not with any other government
personnel) without the prior consent of the lawyer representing the
government in such cases. However, a lawyer making such a communication
without the prior consent of the lawyer representing the government
must make the kinds of disclosures that are required by paragraph (b)
in the case of communications with non-party employees.
[11] Paragraph (d) does not permit a lawyer to bypass counsel representing
the government on every issue that may arise in the course of disputes
with the government. It is intended to provide lawyers access to decision
makers in government with respect to genuine grievances, such as to
present the view that the government’s basic policy position with
respect to a dispute is faulty, or that government personnel are conducting
themselves improperly with respect to aspects of the dispute. It is
not intended to provide direct access on routine disputes such as ordinary
discovery disputes, extensions of time or other scheduling matters,
or similar routine aspects of the resolution of disputes.
[12] This rule is not intended to enlarge or restrict
the law enforcement activities of the United States or the District
of Columbia which are authorized and permissible under the Constitution
and law of the United States or the District of Columbia. The “authorized
by law” proviso to Rule 4.2(a) is intended to permit government
conduct that is valid under this law. The proviso is not intended to
freeze any particular substantive law, but is meant to accommodate substantive
law as it may develop over time.
