North Carolina Administrative Code › Title 27 - STATE BAR › Chapter 02 - RULES OF PROFESSIONAL CONDUCT OF THE NORTH CAROLINA STATE BAR › Section .0400 - TRANSACTIONS WITH PERSON OTHER THAN CLIENTS › Section 02 RULE 4.02 - COMMUNICATION WITH PERSON REPRESENTED BY COUNSEL

Current through Register Vol. 39, No. 2, July 15, 2024
(a) During
				the representation of a client, 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, unless the lawyer has the consent of the other
				lawyer or is authorized to do so by law or a court order. It is not a violation
				of this rule for a lawyer to encourage his or her client to discuss the subject
				of the representation with the opposing party in a good-faith attempt to
				resolve the controversy.
(b)
				Notwithstanding section (a) above, in representing a client who has a dispute
				with a government agency or body, a lawyer may communicate about the subject of
				the representation with the elected officials who have authority over such
				government agency or body even if the lawyer knows that the government agency
				or body is represented by another lawyer in the matter, but such communications
				may only occur under the following circumstances:
(1) in writing, if a copy of the writing is
				promptly delivered to opposing counsel;
(2) orally, upon adequate notice to opposing
				counsel; or
(3) in the course of
				official proceedings.
Comment
[1] This
				Rule contributes to the proper functioning of the legal system by protecting a
				person who has chosen to be represented by a lawyer in a matter against
				possible overreaching by other lawyers who are participating in the matter,
				interference by those lawyers with the client-lawyer relationship and the
				uncounselled disclosure of information relating to the
				representation.
[2] This Rule does
				not prohibit a lawyer who does not have a client relative to a particular
				matter from consulting with a person or entity who, though represented
				concerning the matter, seeks another opinion as to his or her legal situation.
				A lawyer from whom such an opinion is sought should, but is not required to,
				inform the first lawyer of his or her participation and advice.
[3] This Rule does not prohibit communication
				with a represented person, or an employee or agent of such a person, concerning
				matters outside the representation. For example, the existence of a controversy
				between a government agency and a private party, or between two organizations,
				does not prohibit a lawyer for either from communicating with nonlawyer
				representatives of the other regarding a separate matter. Also, a lawyer having
				independent justification or legal authorization for communicating with a
				represented person is permitted to do so.
[4] A lawyer may not make a communication
				prohibited by this Rule through the acts of another.
See
Rule
				8.4(a). However, parties to a matter may communicate directly with each other,
				and a lawyer is not prohibited from advising a client or, in the case of a
				government lawyer, investigatory personnel, concerning a communication that the
				client or such investigatory personnel, is legally entitled to make. The Rule
				is not intended to discourage good faith efforts by individual parties to
				resolve their differences. Nor does the Rule prohibit a lawyer from encouraging
				a client to communicate with the opposing party with a view toward the
				resolution of the dispute.
[5]
				Communications authorized by law may include communications by a lawyer on
				behalf of a client who is exercising a constitutional or other legal right to
				communicate with the government. When a government agency or body is
				represented with regard to a particular matter, a lawyer may communicate with
				the elected government officials who have authority over that agency under the
				circumstances set forth in paragraph (b).
[6] Communications authorized by law may also
				include investigative activities of lawyers representing governmental entities,
				directly or through investigative agents, prior to the commencement of criminal
				or civil enforcement proceedings. When communicating with the accused in a
				criminal matter, a government lawyer must comply with this Rule in addition to
				honoring the constitutional rights of the accused. The fact that a
				communication does not violate a state or federal constitutional right is
				insufficient to establish that the communication is permissible under this
				Rule.
[7] A lawyer who is uncertain
				whether a communication with a represented person is permissible may seek a
				court order. A lawyer may also seek a court order in exceptional circumstances
				to authorize a communication that would otherwise be prohibited by this Rule,
				for example, where communication with a person represented by counsel is
				necessary to avoid reasonably certain injury.
[8] This Rule applies to communications with
				any person, whether or not a party to a formal adjudicative proceeding,
				contract or negotiation, who is represented by counsel concerning the matter to
				which the communication relates. The Rule applies even though the represented
				person initiates or consents to the communication. A lawyer must immediately
				terminate communication with a person if, after commencing communication, the
				lawyer learns that the person is one with whom communication is not permitted
				by this Rule.
[9] In the case of a
				represented organization, this Rule prohibits communications with a constituent
				of the organization who supervises, directs or consults with the organization's
				lawyer concerning the matter or has authority to obligate the organization with
				respect to 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.
				It also prohibits communications with any constituent of the organization,
				regardless of position or level of authority, who is participating or
				participated substantially in the legal representation of the organization in a
				particular matter. Consent of the organization's lawyer is not required for
				communication with a former constituent unless the former constituent
				participated substantially in the legal representation of the organization in
				the matter. If an employee or agent of the organization is represented in the
				matter by his or her own counsel, the consent by that counsel to a
				communication would be sufficient for purposes of this Rule. Compare Rule
				3.4(f). In communicating with a current or former constituent of an
				organization, a lawyer must not use methods of obtaining evidence that violate
				the legal rights of the organization.
See
Rule 4.4, Comment
				[2].
[10] The prohibition on
				communications with a represented person only applies in circumstances where
				the lawyer knows that the person is in fact represented in the matter to be
				discussed. This means that the lawyer has actual knowledge of the fact of the
				representation; but such actual knowledge may be inferred from the
				circumstances.
See
Rule 1.0(g). Thus, the lawyer cannot evade
				the requirement of obtaining the consent of counsel by closing eyes to the
				obvious.
[11] In the event the
				person with whom the lawyer communicates is not known to be represented by
				counsel in the matter, the lawyer's communications are subject to Rule
				4.3.