Ethics-Governance: Article: http://www.wsba.org/media/publications/barnews/2005/fucile.htm

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http://www.wsba.org/media/publications/barnews/2005/fucile.htm Who's Fair Game? Who You Can and Can't Talk to on the Other Side by Mark J. Fucile Washington RPC 4.2 governs communications with represented parties. The "no contact" rule is designed to protect clients by channeling most communications through counsel for each side. Although RPC 4.2 is simple on its face, it can be difficult in application. At the same time, it involves situations that lawyers encounter frequently, and where they risk sanctions for "guessing wrong." In this column, we'll look at who you can — and can't — talk to on the other side. Although the focus is on the litigation context where this arises most frequently, the concepts discussed apply with equal measure outside litigation. We'll first survey the elements of the "no contact" rule, then turn to its exceptions and conclude with how the rule applies in the corporate context. Before doing so, though, we should note three amendments that are before the Supreme Court as part of the WSBA's "Ethics 2003" proposals. The first broadens the scope of the rule slightly by substituting represented person for party. The second deletes RPC 4.2(b), which deals with communications in limited-scope representations under RPC 1.2, and moves it to a comment instead. The third expands the "authorized by law" exception by including court orders. More information on these changes is available on the WSBA website at www.wsba.org/lawyers/groups/ethics2003. The Elements The "no contact" rule has four primary elements: (1) a lawyer, (2) a communication, (3) the subject of the representation, and (4) a party the lawyer knows to be represented. Full Article: http://www.wsba.org/media/publications/barnews/2005/fucile.htm


2006 Ethics-Governance.com