ETHICS AND THE LAW | by Mark J. Fucile
Mark J. Fucile of Fucile & Reising LLP handles professional responsibility, regulatory and attorney-client privilege
matters, and law-firm-related litigation for lawyers, law firms, and legal departments throughout the Northwest.
He is a former chair of the WSBA Committee on Professional Ethics and is a past member of the Oregon State Bar
(OSB) Legal Ethics Committee. He is a co-editor of the WSBA Law of Lawyering in Washington, the WSBA Legal
Ethics Deskbook, and the OSB Ethical Oregon Lawyer. He also teaches legal ethics as an adjunct for the University of
Oregon School of Law at its Portland campus. He can be reached at 503-224-4895 and Mark@frllp.com.
The “no contact” rule has been around a long time. In fact, it was one of the original canons adopted by the American Bar Association
(ABA) in 1908. The rule continues to be
relevant today because it is one of the
Rules of Professional Conduct (RPCs)
that all lawyers encounter frequently. Although the form of the rule has evolved
from the original ABA canon to today’s
RPC 4. 2, the prohibition on communicating with a person represented in the
matter to which the communication
relates remains at its core. Since I last
examined the rule in this space, however,
there have been a number of significant
developments in the comments to the
rule, case law interpreting the rule, and
advisory opinions addressing the rule
from both the ABA and the WSBA.
In this column, I’ll look first at those
developments within the context of the
elements of the rule and its exceptions.
I’ll then turn to the related topic of how
the rule plays out in the entity setting.
ELEMENTS OF THE RULE
The “no contact” rule is simple on its
face, but can be difficult in application.
It is only a single sentence long: “In
representing a client, a lawyer shall not
communicate about the subject of the
representation with a person the lawyer
knows to be represented by another
lawyer in the matter, unless the lawyer
has the consent of the other lawyer or
is authorized to do so by law or a court
order.” In understanding the rule, it is
useful to break it down into its compo-
nent parts: ( 1) a lawyer; ( 2) a commu-
nication; ( 3) about the subject of the
representation; and ( 4) with a person
the lawyer knows to be represented.
A lawyer. The lawyer making the contact
is, in many respects, the easiest part of
the rule. But, even here, there are important nuances. For example, the Washington Supreme Court in In re Haley,
156 Wn.2d 324, 126 P.3d 1262 (2006),
concluded that the prohibition extended to lawyers who are representing
themselves. By contrast, the Supreme
Court is currently reviewing a proposed
comment that would exclude lawyers
who are represented in a matter (and
who have not otherwise joined in that
representation as co-counsel) from the
prohibition—essentially putting them
on the client side of the rule rather than
the lawyer side. In-house lawyers also
straddle the lawyer and client divide.
ABA Formal Opinion 06-443 (2006)
concluded that in-house lawyers who are
acting in a representational capacity fall
on the lawyer side (and, therefore, may
be contacted directly) while lawyers who
are filling management positions are
generally on the client side (and, therefore, may not be contacted directly).
RPC 8. 4(a) prohibits a lawyer from
violating the RPCs “through the acts
of another[.]” Accordingly, a lawyer
cannot use the lawyer’s paralegal,
assistant, or investigator to make an
otherwise prohibited contact. Clients,
in turn, present a more difficult question. On one hand, clients are generally
free to contact each other directly
during the course of litigation and, in
many circumstances, need to do so as a
matter of ongoing business operations.