16.02. Contact with Represented Persons: “No Contact Rule” [Rule 4.2]

If a lawyer could talk to opposing parties or others involved in a lawsuit who are represented by counsel without having to go through the person’s lawyer, it would defeat a primary role of a lawyer: to protect the client’s interests in the adversarial system.  This is how a Comment to Rule 4.2 puts it:  “This Rule contributes to the proper functioning of the legal system by protecting a person who has chosen to be represented by a lawyer in a matter against possible overreaching by other lawyers who are participating in the matter, interference by those lawyers with the client-lawyer relationship and the uncounseled disclosure of information relating to the representation.”[1] 

The “no contact rule” prohibits a lawyer who is representing a client in a matter from communicating “about the subject of the representation” with the person when the lawyer knows that the person is represented.  The only exceptions to the no contact rule are when:  (1) the lawyer has the consent of the person’s lawyer to talk to them; or (2) law or a court order authorizes the communication.[2]

Plaintiffs (represented by counsel) are the members of a class action claim against Bayer based on adverse effects of a certain drug.  After the class was formed, Bayer sent forms to plaintiffs seeking release of their medical records related to the adverse effects.  Bayer is mandated by Federal Drug Administration regulations to send out the forms whenever they learn of an adverse drug event.  Plantiff’s attorney sought to have the court issue a restraining order:  requiring all communications to go through the plaintiffs’ attorneys.  Should the court grant the restraining order? [Lewis v. Bayer A.G., 2002 WL 1472339 (Pa. Ct. Common Pleas 2002)] 

No.  Although the defendant’s attorney did communicate with the individual plaintiffs directly without going through the plaintiffs’ attorney, the communication was pursuant to law – the regulation that required the defendant drug company to obtain medical releases from those with adverse effects of the drug.

The prohibition applies no matter who initiates the contact or if the person consents to talking to the lawyer without their lawyer present.  For example, if a represented person calls the lawyer, immediately upon realizing the person has an attorney, the lawyer receiving the call must immediately terminate the conversation.[3] The rule does not prohibit conversations between a lawyer and a represented person about matters beyond the scope of the representation.  It also does not prohibit a lawyer from talking with someone who is represented in a matter that is seeking advice from another lawyer (those seeking a second opinion) so long as the lawyer does not have a client in the matter.[4]

[1] ABA Rule 4.2, Comment [1].

[2] ABA Rule 4.2.

[3] ABA Rule 4.2, Comment [3].

[4] ABA Rule 4.2, Comment [4].