IV. The No Contact Rule. Rule 4.2, DR 7-104 (essentially the same). A. 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. 1. Communication must occur while the lawyer is “representing a client .” 2. Lawyer must know that the person with whom she is communicating is represented by another lawyer on the subject of the communication. 3. The communicating lawyer is only forbidden to communicate about the “subject ” of the other lawyer’s representation. a) Does firm that represents client for “general business purposes” also represent client for something specific but unrelated? 4. The prohibition does not apply if the other lawyer consents to the communication or if it is “authorized by law .”
Professional Responsibility Outline Spring 2001 Page 7 5. A violation occurs if the lawyer engages in the forbidden communication through a third party , such as an investigator or the lawyer’s own client. Rule 8.4(a), DR 1-102(A)(2) . B. The civil context 1. Are employees of corporate party also considered “parties” under DR 7-104 ? According to Niesig v. Team I (followed in 2d Cir), a “party” is: a) employees whose acts or omissions in the matter under inquiry are binding on the corporation, or b) employees whose acts or omissions in the matter under inquiry are imputed to the corporation for purposes of its liability, or c) employees implementing the advice of counsel. 2. Former employee can be contacted (no longer agent of corporation). C. The criminal context 1. Many jurisdictions allow the government to contact a suspect pre- indictment . After indictment, the government can no longer talk to the defendant without counsel’s permission. 2. Federal prosecutors are bound by state ethics rules. McDade Amendment (likely to be overturned). 3. Violation of no contact rule can lead to suppression . U.S. v. Hammad . 4. What if prosecutor has improperly obtained evidence from the defense? Courts are split. V. Attorney-Client Privilege in the Corporate Context A. Rule 1.13 : a lawyer has the same ethical duties under Rule 1.6 whether the client is a biological person or entity (corporation, labor union, government). B. Communications between an entity client and its counsel are privileged from disclosure outside the entity . Upjohn Co. v. United States . But which persons within an entity are protected? 1. Broad: Subject matter/purpose of communication test; privilege includes communications with low- and mid-level employees. See Upjohn (allowing protection of communication with persons outside of
Professional Responsibility Outline Spring 2001 Page 8 control group; followed in New York ). This test encourages corporations to investigate through counsel. See Restatement § 123. 2. Narrow: Control group test : privilege applies only to the most senior management who exercise control.
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