Ethics Opinions

Opinion 05-01

Summary: If an attorney does not have sufficient information to get in touch with the lawyer representing another person in a matter, he may communicate with the represented person to obtain the necessary contact information without violating Rule 4.2 of the Massachusetts Rules of Professional Conduct. The attorney should take precautions, however, to make sure that the communication does not touch on the subject matter of the representation.

Facts: The inquiring attorney represents A in a transaction with B. He understands that B is also represented by counsel, but he does not have enough information to contact B's lawyer. He asks whether he can communicate with B to find out the information necessary to get in touch with B's counsel.

Discussion: Rule 4.2 of the Massachusetts Rules of Professional Conduct provides, in relevant part:
"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...."
This Rule serves the twin purposes of "preserving the mediating role of counsel on behalf of their clients" and "protecting clients from overreaching by counsel for adverse interests." Messing, Rudavsky & Welicky, P.C. v. President and Fellows of Harvard College, 436 Mass. 347, 352 (2002). The interests that the Rule protects are not threatened by a communication intended solely to identify a person's attorney and obtain enough information to get in touch with that attorney. Indeed, an expansive reading that forbids such communications might prevent careful attorneys from obtaining the information necessary to establish the lawyer-to-lawyer contact required by the Rule. We conclude, therefore, that a communication with a represented person intended solely to obtain contact information for that person's attorney is not a communication "about the subject of the representation" within the meaning of Rule 4.2.
A word of caution is, however, in order. The communication must relate solely to the identity of, and contact information for, a person's attorney. Rule 4.2 prohibits communication about the subject matter of the representation, even if the communication is initiated by the person contacted and the attorney simply listens to what the person has to say. Although a communication may begin innocently, once it strays into the substance of the matter, the attorney risks disqualification and professional discipline. See e.g. Papanicolaou v. Chase Manhattan Bank, N.A., 720 F.Supp. 1080 (S.D.N.Y. 1989) (law firm for defendant disqualified when lead lawyer discussed the merits of the lawsuit with the plaintiff, even though plaintiff initiated the discussion); In the Matter of Howes, 940 P.2d 159 (N.M. 1997)(prosecutor publicly censured for listening to criminal defendant discuss case without defense counsel's knowledge, even though defendant initiated the conversation and prosecutor asked no questions); In the Matter of Searer, 950 F.Supp. 811 (W.D.Mich. 1996) (attorney reprimanded for meeting with a represented

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person, even though represented person asked for the meeting). In light of the risk that an oral communication might stray into forbidden territory, the inquiring attorney should consider asking B for the necessary contact information by letter, if feasible. It might also be prudent to ask B to pass the letter on to his lawyer and have that lawyer respond directly to the inquiring attorney. If there is need to proceed orally, it might be wise to have a secretary make the call.

This opinion was approved for publication by the Massachusetts Bar Association’s House of Delegates on March 3, 2005.

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