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• W347763641 abstract "I. Introduction Few issues in litigation are as contentious as lawyers' allegedly improper attempts at ex parte communications with parties or people so closely identified with parties that they may be considered off limits to informal discovery efforts. This is not a one-sided issue. In personal injury litigation, for example, plaintiffs' lawyers strenuously resist attempts by defense lawyers to communicate ex parte with treating physicians. On the other side of the coin, defense lawyers organizations often bristle when plaintiffs' lawyers attempt to speak with current or former employees outside of defense counsel's presence. Regardless of side, lawyers' attempts at ex parte communications with opposing expert witnesses are sure to provoke accusations of impropriety. If a lawyer's ex parte communications are found to be improper, the consequences can be substantial. In addition to professional discipline, lawyers may be disqualified from further participation in the cases in which the communications occurred and they may face monetary sanctions. Other penalties, such as the exclusion of improperly obtained evidence, may severely impair representations and lead to a host of undesirable consequences. There is a notable volume of case law on the professional responsibility ramifications of ex parte communications. Yet many cases provide little or no guidance to lawyers with respect to the limits of acceptable conduct, and some key areas of the law are incompletely understood or simply unsettled. This article examines several areas of recurring importance to trial lawyers insofar as ex parte communications go, including limits on communications with current and former employees of organizations; in-house counsel; treating physicians; and opposing expert witnesses. In doing so, it discusses applicable ethics rules as well as other legal principles bearing on these issues. II. Applicable Rules of Professional Conduct The American Bar Association's (ABA') Model Rules of Professional Conduct govern lawyers' conduct in the overwhelming majority of jurisdictions. Model Rule 4.2, commonly referred to as the anti-contact rule, (1) addresses lawyers' communications with persons who are represented by counsel. The role provides: In 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. (2) At the outset, Rule 4.2 plainly requires that the target lawyer be a for a communication to be improper. (3) A lawyer acting pro se is representing a client for purposes of the rule. (4) As for knowing whether a person is represented by another lawyer, that is easily established where the other lawyer has made herself known by filing a pleading, calling to announce her representation, or writing to identify herself and her role. (5) Such clarity is not required to find a violation, however, because a lawyer's knowledge can always be inferred from the circumstances. Lawyers cannot avoid acquiring knowledge by turning a blind eye to the obvious. That said, the requirement is clearly one of actual knowledge. Lawyers are not required to speculate about a person's representation--nor does mere suspicion about a person's representation determine their obligations. (6) For example, a person's statement that she should speak with someone else--such as a workplace supervisor--before speaking with a lawyer, does not support the conclusion that the lawyer knew of the person's representation. (7) The fact that a lawyer should have known that a person was represented in a matter will not support a Rule 4.2 violation. (8) Questions occasionally surface about the existence or scope of a matter. (9) This is most common where litigation is contemplated but has not been initiated, and lawyers for the putative parties are gathering information in preparation for it, or where a person is involved in several enterprises or projects with legal aspects. …" @default.
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• W347763641 date "2009-01-01" @default.
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• W347763641 title "Let's Talk: Critical Aspects of the Anti-Contact Rule for Lawyers" @default.
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