Can I Talk to You? Reflections on the No Contact Rule

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Lawyers, have a number of ethical restrictions that limit who they can talk to and what they can talk about. One of the more commonly raised restrictions is the no contact rule. According to Charles W. Wolfram’s “Modern Legal Ethics,” the no contact rule, as a general proposition, prohibits a lawyer who is representing a client from contacting a party known to be represented by another party. The no contact rule first found its way into the American Bar Association’s canons of ethics in 1908. Texas, like virtually every other state has a no contact rule.

The Texas rule is contained in Rule 4.02(a) of the Disciplinary Rules of Professional Conduct. Rule 4.02(a) provides:

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In representing a client, a lawyer shall not communicate or cause or encourage another to communicate about the subject of the representation with a person, organization or entity of government the lawyer knows to be represented by another lawyer regarding that subject, unless the lawyer has consent of the other lawyer or is authorized by law to do so.

The rule is intended to thwart efforts to circumvent the lawyer client relationship existing between persons, organizations or entities and their respective counsel. Cmt 1. Rule 4.02(a) does not prohibit communication between a lawyer’s client and other entities represented by counsel as long as the lawyer does not cause or encourage the communication without the consent of the counsel for the other party. Cmt 2.

Lawyers who are accused of violating the no contact rule often become targets of motions to disqualify, and occasionally find themselves the subject of a disciplinary action.

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An interesting question of when a lawyer knows a party is represented, arose in In re Users System Services, Inc. 22 S.W.3d 331(Tex. 1999). In the UsersSystem case, a principal of the plaintiff asked one of the individual defendants to meet with him at his counsel’s office to discuss the lawsuit. The defendant accepted and wrote a letter, which he provided to plaintiff’s counsel advising that he desired to meet counsel to discuss the lawsuit without the assistance of his counsel. The letter further stated, “I am no longer represented by any attorney in this matter, and I do not desire to be represented by counsel in connection with my discussion with you.” At the time of this letter, the defendant’s counsel was not advised that his representation was terminated.

Based on this letter, counsel for the plaintiff agreed to participate in the discussion between the plaintiff ’s representative and the defendant. At the meeting the individual defendant provided a handwritten statement describing certain events relating to the lawsuit. A settlement was not reached with the defendant at the meeting, but later that day a nonsuit was filed of all of the plaintiff ’s claims against that defendant.

Not until much later did the individual defendant’s lawyer, who was also counsel for other parties in the case, learn of the meeting, the letter to plaintiff ’s counsel, or the hand written statements provided to the plaintiff. After a denial of a motion to disqualify plaintiff ’s counsel, mandamus relief was sought in the court of appeals. On rehearing, the court of appeals reasoned that the meeting at the law firm in the presence of one of the plaintiff ’s lawyers “can only be interpreted as an encouragement” of communication prohibited by Rule 4.02. The court of appeals concluded that “the spirit” of Rule 4.02 required an ethical lawyer to avoid such communications when in a litigation setting for as long as counsel for the other party has not officially withdrawn from representation.

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The Texas Supreme Court disagreed. The court noted that before the meeting with the individual defendant, the attorney knew the defendant was represented by counsel, but after the lawyer received the letter there was no evidence the lawyer knew the defendant was represented. Having no reason to doubt the defendant’s statement, the lawyer was not required to call opposing counsel. Rule 4.02 does not require a lawyer to contact a person’s former attorney to confirm that the person’s statement that representation has been terminated before communication with the person. The court did hedge by pointing out that confirmation of termination may be necessary in some circumstances before an attorney can determine whether a person is no longer represented, but it is not required by Rule 4.02 in every situation. The court found that confirmation of termination of the representation may be a “sensible course” in many instances, but was not a prerequisite to communication. Although the plaintiff ’s lawyers were not disqualified, the motion for disqualification involved a lengthy process and took years to be resolved.

The concept of the no contact rule is easy to state. The challenge is determining how such a communication will be viewed, often years later. Bruce A. Campbell

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