The scope of the “no-contact rule” — barring a lawyer from communicating with represented persons — is spotlighted in a disqualification ruling that a Florida district court handed down earlier this month. The opinion is a reminder that the prohibition against contact (without permission of the person’s counsel) extends only to “the subject of the representation.”
“Did not discuss Plaintiff’s case…”
The plaintiff sued the defendant collection agency in the Middle District of Florida for allegedly violating the federal Fair Debt Collection Practices Act; she was represented by the Agruss Law Firm. In early November, according to the collection agency, Agruss employees contacted it twice, even though the firm knew that the collection agency was represented by counsel in the plaintiff’s case.
Based on Florida’s version of Model Rule 4.2, “Communication with Person Represented by Counsel,” the collection agency demanded that plaintiff’s counsel be disqualified based on the phone contacts.
Not so fast, responded the Agruss firm. The law firm explained in its brief in opposition to disqualification that it frequently represents plaintiffs in FDCPA actions. It acknowledged that on one of the dates in question a paralegal of the firm had phoned the collection agency — but it submitted unrebutted affidavit evidence that the call did not relate to the plaintiff’s case in the Florida action. Rather, said the law firm, its paralegal had called the collection agency in order to investigate a potential FDCPA claim against the collection agency by a completely different person. The law firm later filed a separate complaint in the Northern District of Texas against the collection agency on that person’s behalf.
A second call to the collection agency was made a few days later by a principal of the Agruss firm, who simply listened to the agency’s outgoing voicemail message, and who never spoke to anyone at the agency, according to a second affidavit.
Based on this evidence, the district court denied the plaintiff’s motion to disqualify the Agruss firm, holding that there had been no violation of the “no-contact” rule.
Must be “about the subject of the representation”
Florida’s Rule 4-4.2, like its Model Rule counterpart, provides that in representing a client, a lawyer “must not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter,” without the consent of the other lawyer.
Although the evidence showed that the Agruss firm had contacted the defendant collection agency directly, the court said, it was about a completely different case. Therefore, the contact was not “about the subject of the representation,” as would be necessary in order to demonstrate a violation of the rule, according to the court.
Some “no-contact rule” basics
The law firm in this case was on the right side of the no-contact rule. As comment [4] notes, it does not bar “communication with a represented person, … concerning matters outside the representation. ” But there are some fine points about Rule 4.2 (set out in the comments) that you should keep in mind, including:
- The rule applies even though the represented person initiates or consents to the communication.
- You may not make a communication prohibited by the no-contact rule through the acts of another. (See Model Rule 8.4(a).)
- “Parties to a matter” may always communicate directly with each other, even though they are represented by counsel.
What about business entities? There is a large body of cases and ethics opinions regarding contacts with current and former employees of entities. In general, under the Model Rules’ approach, counsel for an entity can’t assert blanket representation of all the employees so as to bring them within the scope of the no-contact rule and keep opposing counsel from contact with them. (See ABA Formal Eth. Op. 396 (July 28, 1995).) On the other hand, contact is improper with “a constituent of the organization” who “regularly consults with the organization’s lawyer concerning the matter or … whose act or omission in connection with the matter may be imputed to the organization for purposes of civil or criminal liability.” In contrast, as comment [7] notes, former employees of an organization are generally fair game (unless represented by their own counsel).
Seek advice if you have a no-contact rule issue. And as we frequently say, this is an area where you need to pay attention to the relevant jurisdiction’s rules and opinions.