(b) During the course of representing a client, a lawyer may communicate about the subject of the representation with a nonparty employee of the opposing party without obtaining the consent of that party’s lawyer. 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 with a claim against the employee’s employer.
(c) For purposes of this Rule, the term "party" includes 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.
(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 does not prohibit communication with
a party, or an employee or agent of a party, 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.
[2] In the case of an organization, 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.
[3] 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 (1983). 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.
[4] This Rule also covers any person, whether or not
a party to a formal proceeding, who is represented by counsel concerning
the matter in question.
[5] 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.
[6] 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.
[7] 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.
[8] 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.
