Reporter’s Explanation of Changes
TEXT:
Add reference to "court order"
Although a communication with a represented person pursuant to a court order will ordinarily fall within the "authorized by law" exception, the specific reference to a court order is intended to alert lawyers to the availability of judicial relief in the rare situations in which it is needed. These situations are described generally in Comment [4].
After consideration of concerns aired by prosecutors about the effect of Rule 4.2 on their ability to carry out their investigative responsibilities, the Commission decided against recommending adoption of special rules governing communications with represented persons by government lawyers engaged in law enforcement. The Commission concluded that Rule 4.2 strikes the proper balance between effective law enforcement and the need to protect the client-lawyer relationships that are essential to the proper functioning of the justice system.
COMMENT:
[1] This new Comment states the purposes served by Rule 4.2 and, in particular, emphasizes that the Rule is designed not merely to protect individual clients but also to enhance the proper functioning of the legal system.
[2] This contains the substance of current Comment [1]. The last sentence has been deleted and its subject addressed in Comment [3]. A new sentence clarifies that Rule 4.2 does not preclude communication with a represented person who is seeking a second opinion from a lawyer who is not representing a party in the matter. Also, material has been added from the commentary to Rule 8.4(a) emphasizing that a lawyer may not make a communication prohibited by this Rule through the acts of another. At the same time, parties are not precluded from communicating with one another, and a lawyer is not prohibited from advising a client concerning a communication that the client is legally entitled to make.
[3] This Comment addresses when communications to or by the government may be within the Rule’s "authorized by law" exception. The first sentence revises the final sentence of current Comment [1] and alerts lawyers to the possibility that a citizen’s constitutional right to petition and the public policy of ensuring a citizen’s right of access to government decisionmakers may create an exception to this Rule. The remainder of the Comment substantially revises current Comment [2] on the applicability of the "authorized by law" exception to communications by government lawyers, directly or through investigative agents, prior to the commencement of criminal or civil enforcement proceedings. The reference in current Comment [2] to judicial precedent has been deleted, and the relationship between the Rule and applicable constitutional limits on government conduct has been reformulated. In place of the statement that the Rule imposes ethical restrictions that "go beyond" those imposed by constitutional provisions, the Comment explains that the fact that a communication does not violate the constitution "is insufficient to establish" that the communication is permissible under the Rule. For example, the fact that an individual has waived the constitutional right to consult the individual's lawyer at the time of arrest "is insufficient to establish" the ethical propriety of an ex parte communication by the government with that individual if the individual’s lawyer has not agreed to the communication. In reformulating the relationship between the Rule and applicable legal or constitutional requirements, the Commission intends no substantive change in the applicable standard.
[4] This new Comment explains the two circumstances in which a lawyer may seek a court order authorizing a communication: 1) where a lawyer is uncertain whether or not the communication is permitted by Rule 4.2; and 2) where a communication is prohibited by the Rule but "exceptional circumstances" nonetheless justify it. The example given is where ex parte communication with a represented person is necessary to avoid reasonably certain injury.
[5] This Comment revises current Comment [3] by adding two new sentences. The first makes clear that the protections accorded by Rule 4.2 may not be waived by the client. The second addition addresses situations in which a lawyer does not know at the initiation of a communication that a person is represented by counsel but finds out later. It reminds lawyers that they must terminate communication once they learn that the person is represented by counsel in the matter to which the communication relates. No change in substance is intended.
[6] This Comment modifies current Comment [4] identifying the constituents of a represented organization with whom a lawyer may not communicate without the consent of the organization’s lawyer. The current Comment’s inclusion of all "persons having a managerial responsibility on behalf of the organization" has been criticized as vague and overly broad. As reformulated, the Comment contains the more specific reference to "a constituent of the organization who supervises, directs or regularly consults with the organization’s lawyer concerning the matter or has authority to obligate the organization with respect to the matter." In focusing on the constituent’s authority in the matter at issue and relationship with the organization’s lawyer, the Comment provides clearer guidance than the broad general reference to "managerial responsibility."
In addition, the reference in the current Comment to a constituent whose act or omission in the matter may be imputed to the organization for purposes of civil or criminal liability has been retained. However, the Commission deleted the broad and potentially open-ended reference to "any other person ... whose statement may constitute an admission on the part of the organization." This reference has been read by some as prohibiting communication with any person whose testimony would be admissible against the organization as an exception to the hearsay rule.
A new sentence has been added to clarify that consent of the organization’s lawyer is not required for communications with former constituents. The Commission, however, has added a warning to lawyers that Rule 4.4 precludes the use of methods of obtaining evidence that violate the legal rights of the organization.
[7] The penultimate sentence of current Comment [5] has been deleted because it suggests incorrectly that the required element of knowledge can be established by proof that the lawyer had "substantial reason to believe" that the person was represented in the matter. This is inconsistent with the definition of "knows" in Rule 1.0(f), which requires actual knowledge and involves no duty to inquire.
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