Pennsylvania Code › Title 204 - JUDICIAL SYSTEM GENERAL PROVISIONS › Part V - PROFESSIONAL ETHICS AND CONDUCT › Subpart A - PROFESSIONAL RESPONSIBILITY › Chapter 81 - RULES OF PROFESSIONAL CONDUCT › Subchapter A - RULES OF PROFESSIONAL CONDUCT › TRANSACTIONS WITH PERSONS OTHER THAN CLIENTS › Rule 4.2 - Communication with Person Represented by Counsel

Current through Register Vol. 54, No. 28, July 13, 2024
In representing 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.
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 applies to communications with any person who is represented by
						counsel concerning the matter to which the communication relates.
(3) 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.
(4)
						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. Nor does this Rule preclude
						communication with a represented person who is seeking advice from a lawyer who
						is not otherwise representing a client in the matter. A lawyer may not make a
						communication prohibited by this Rule through the acts of another. See Rule
						8.4(a). Parties
						to a matter may communicate directly with each other, and a lawyer is not
						prohibited from advising a client concerning a communication that the client is
						legally entitled to make. Also, a lawyer having independent justification or
						legal authorization for communicating with a represented person is permitted to
						do so.
(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. Communications authorized by law may also include constitutionally
						permissible 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.
(6) 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.
(7) In the case of a represented
						organization, this Rule prohibits communications with 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 or whose act or omission in connection
						with the matter may be imputed to the organization for purposes of civil or
						criminal liability. Consent of the organization's lawyer is not required for
						communication with a former constituent. If a constituent of the organization
						is represented in the matter by his or her own counsel, the consent by that
						counsel to a communication will 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.
(8) 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(f). Thus,
						the lawyer cannot evade the requirement of obtaining the consent of counsel by
						closing eyes to the obvious.
(9) 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.