Attorney Roberts is representing a client in a contentious real estate dispute. Roberts knows that the opposing party, Ms. Chen, is represented by counsel. During a chance encounter at a local coffee shop, Ms. Chen approaches Roberts and begins to discuss the merits of her case and potential settlement terms. What is Roberts's ethical obligation in this situation?
- ARoberts must immediately contact Ms. Chen's counsel to report the unauthorized communication.
- BRoberts may listen to Ms. Chen and engage in a limited discussion, as Ms. Chen initiated the contact.
- CRoberts may continue the conversation but must advise Ms. Chen that she is not her attorney.
- DRoberts must politely terminate the conversation and advise Ms. Chen to direct all communications through her own counsel.
Show answer & explanationAnswer & explanation
Correct answer: D. Roberts must politely terminate the conversation and advise Ms. Chen to direct all communications through her own counsel.
Model Rule 4.2 prohibits a lawyer from communicating 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. This prohibition applies even if the represented person initiates the contact.
Why the other options are wrong
- A. While reporting may be appropriate in some circumstances, the immediate ethical obligation is to terminate the improper communication, not necessarily to report it immediately.
- B. The initiation of contact by the represented person does not waive the protection of Rule 4.2.
- C. Advising Ms. Chen that she is not her attorney is insufficient; the communication itself is prohibited.
Inadvertent Contact with Represented Person
If a represented person initiates communication with an opposing lawyer, the lawyer must cease discussion of the subject matter and direct the person to communicate through their own counsel.
- Rule 4.2 applies regardless of who initiates contact.
- Lawyer must avoid discussing the merits of the case.
- The purpose is to protect the represented person from overreaching by opposing counsel.
Memory trick: No back-channel talks; always go through the official 'legal' channels.