End-of-life notice: American Legal Ethics Library
As of March 1, 2013, the Legal Information Institute is no longer maintaining the information in the American Legal Ethics Library. It is no longer possible for us to maintain it at a level of completeness and accuracy given its staffing needs. It is very possible that we will revive it at a future time. At this point, it is in need of a complete technological renovation and reworking of the "correspondent firm" model which successfully sustained it for many years.
Many people have contributed time and effort to the project over the years, and we would like to thank them. In particular, Roger Cramton and Peter Martin not only conceived ALEL but gave much of their own labor to it. We are also grateful to Brad Wendel for his editorial contributions, to Brian Toohey and all at Jones Day for their efforts, and to all of our correspondents and contributors. Thank you.
We regret any inconvenience.
Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.
District of Columbia Legal Ethics
4.1:100 Comparative Analysis of DC Rule
The black letter text of DC Rule 4.1 is, and has always been, identical to Model Rule 4.1. The Ethics 2000 Commission recommended no changes to the text of the Model Rule, and neither did the DC Rules Review Committee with respect to the DC Rule.. However, there were from the time the DC Rule was first adopted some slight differences in two of the Comments to the Rule. The Ethics 2000 Commission recommended changes, adopted in 2002, in all three of the Comments to the Model Rule, and the DC Rules Review Committee recommended and the DC Court of Appeals adopted in 2006 the same changes in Comments  and  to the DC Rule, and slightly different changes in Comment  to the DC Rule.
The resulting differences in the Comments to the two versions of Rule 4.1 are as follows. The DC Rule's Comment  has a final sentence, not found in the corresponding Comment to the Model Rule, stating that "third person" as used in both paragraphs of the rule means a person or entity other than the lawyer's client. The DC Rule's Comment  emphasizes in each of the first two sentences that the rule prohibits only material false statements, and has a final sentence saying that there may be other situations besides those mentioned in the Comment where statements are not ordinarily taken as statements of material fact; the corresponding Comment to the Model Rule has neither of these features. Prior to the changes made in 2002 to the Model Rule and 2006 in the DC Rule, Comment  to Rule 4.1 was identical in the two versions. In the 2002 changes, however, the caption before the Comment to the Model Rule was modified to add Crime or before Fraud by Client; no such change has been made in the DC Rule's version. The Comment itself was also substantially modified in connection with the 2002 changes, to explain that a lawyer's duty under this paragraph (b) of the Rule is a "specific application" of the lawyer's duty under Rule 1.2(d); to explain the remedial measures lawyer may be required to take to avoid assisting client crime or fraud, including, where necessary, disclosure in "extreme" cases; and to make clear that disclosure is permitted only to the extent allowed by Rule 1.6. The 2006 amendments to the DC Rule included almost identical changes to Comment , differing from the Model Rule counterpart only in the language in which reference is made to information protected by Rule 1.6 (reflecting the differences in the two versions of that Rule), and in the addition to the DC Rule's Comment of a sentence elaborating on the bearing of Rule 1.6 to this Rule.
Paragraph (a) of DC Rule 4.1, like its Model Rule counterpart, is substantially similar to DR 7-102(A)(5), which stated that "[i]n his representation of a client, a lawyer shall not . . . [k]nowingly make a false statement of law or fact." The principal difference of substance between the two provisions is that Rule 4.1(a)'s prohibition is limited to false statements made to third persons (while Rule 3.3(a)(1) separately prohibits such statements to a tribunal), whereas DR 7-102(A)(5) does not limit the persons or entities to whom false statements are forbidden. Paragraph (b) of the Rule, also like its Model Rule counterpart, is somewhat similar to DR 7-102(A)(3), which provided that a lawyer shall not "[c]onceal or knowingly fail to disclose that which he is required by law to reveal," but it is more narrowly limited to disclosures necessary to avoid assisting a crime or fraud by the client, and like paragraph (a) is limited to communications with third persons.
4.1:200 Truthfulness in Out-of-Court Statements
The term "third person" in Rule 4.1(a) includes opposing counsel. In In re Zeiger, 692 A.2d 1351 (DC 1997), the respondent, who had represented a client in a personal injury action arising from an automobile accident, admitted that he had altered his client's hospital records before producing them to counsel for the insurance company. The records indicated that the client was intoxicated at the time of the accident. Respondent argued that he deleted the references to his client's alcohol content following the accident and the references to his client's alcoholism and treatment because the information was "immaterial and extremely prejudicial." Id. at 1355. The Board on Professional Responsibility found, however, and the Court upheld the finding, that respondent had violated Rule 4.1(a), as well as Rules 3.4(a) (altering, destroying, or concealing evidence), and 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation). Similarly, in In re Pierson, 690 A.2d 941 (DC 1997), a lawyer who was disbarred for misappropriating client funds, in violation of Rule 1.15(a), was also found to have violated Rule 4.1(a) (along with Rule 8.4(c)) for falsely stating to opposing counsel that she had settlement money in her possession when in fact she had spent the money to pay her law firm's bills, and for later falsely stating that the settlement money was in her escrow account. As indicated by these two cases, misrepresentations found to violate Rule 4.1 are frequently also found to violate Rule 8.4(c)) (and this was also true of their predecessor provisions in the Code, DR 7-102(A)(5) and DR 1-102(A)(4)).
Despite Comment 's assertion that the phrase "third person" means a person or entity other than the client, Rule 4.1(a) has been held applicable to misrepresentations made to an intermediary for the client. In re Sumner, 665 A.2d 986 (D.C. 1995) (finding violation of Rule 4.1(a) by reason of statements to the intermediary to the effect that the lawyer had ordered and received the transcripts of the client's trial, when in fact he had never ordered the transcripts).
There was no doubt that DR 7-102(A)(5) applied to misrepresentation to the lawyer's client. Thus, in In re Reid, 540 A.2d 754 (DC 1988), the Court approved reciprocal discipline of a lawyer who had been suspended in Maryland for manifold misconduct which included misrepresenting to his client that the amount of a settlement received in a personal injury matter was $6,000 when in fact it was $9,000, in violation of DR 7-102(A)(5). But cf. In re Schneider, 553 A.2d 201, 206 n.5 (DC 1989) (observing that while the lawyer might have been charged with violating DR 7-102(A)(5) for altering travel reimbursement forms submitted to his firm, the "provisions of DR 7-102 are directed mainly at dealings with tribunals and third parties").
DC Ethics Opinion 203 (1989) addressed a lawyer's employing as an investigator a union representative who had referred a case to him. The Opinion warned that the arrangement, while not a per se violation of the disciplinary rules, presented ethical risks. Among other things, the Opinion pointed out that the investigator could not do anything that the lawyer could not ethically do, including knowingly making false statements of fact that would violate DR 7-102(A)(5).
DC Ethics Opinion 126 (1983) held that the fact that a client had failed to make required payments on a contribution order would be a client "secret" or "confidence" that a lawyer would ordinarily be forbidden to disclose, but that, when the lawyer must respond to a court's inquiry as to whether the client has complied with the contribution order, a failure to disclose such information would violate DR 7-102(A)(3) and (5).
Rule 4.1(b) makes clear that a lawyer's obligation to make disclosures in order to prevent criminal or fraudulent acts by a client is trumped by Rule 1.6's requirement that confidences and secrets be preserved. Where confidences or secrets are involved, therefore, Rule 4.1(b) requires disclosure only in circumstances where Rule 1.6 allows disclosure. Those circumstances are set out in DC Rule 1.6(c) and (d).
DC Ethics Opinion 219 (1991) addressed the interplay between a regulation of the U.S. Patent and Trademark Office and several ethical rules, including Rule 4.1(b). The regulation, 37 CFR § 10.85(b)(1), provided that a practitioner learning that a client in the course of the representation had perpetrated a fraud upon a person or tribunal must call upon the client to rectify it, and must himself or herself reveal the fraud if the client does not do so. This requirement of disclosure was inconsistent with both DC Rule 3.3(d) (Candor Toward the Tribunal) and Rule 4.1(b), both of which exempt, from the requirements of disclosure they otherwise impose, information protected by Rule 1.6. The Opinion held that in these circumstances the Patent Office regulation would prevail, since DC Rule 1.6(d)(2)(A) permits a lawyer to reveal client confidences and secrets when "required by law or court order" and, in the Legal Ethics Committee's view, "law" for this purpose includes federal regulations having the force and effect of law.
Decisions applying DR 7-102(A)(3) reached a similar result by reason of its requiring disclosure of information whose disclosure is "required by law," since that phrase has been interpreted as including a requirement by court order. Thus, in In re Reiner, 561 A.2d 479 (DC 1989) (per curiam), the Court approved the imposition of reciprocal discipline on a lawyer whom the Virginia disciplinary authorities had found to have violated DR 7-102(A)(3) by failing to comply with an order requiring the lawyer to disclose, via certified letter to all of his clients, opposing counsel and judges before whom he had matters pending, the fact that he had been suspended for other violations. Similarly, DC Ethics Opinion 124 (1983) dealt with a lawyer's ethical responsibilities when in the course of a routine Internal Revenue Service audit of the lawyer's firm the names of the firm's clients were sought. Noting that the identity of the clients may be "confidences" or "secrets" protected by DR 4-101, the Legal Ethics Committee considered, inter alia, whether, absent client consent, the firm could furnish such client identities in response to an IRS summons and concluded that the firm would remain under an ethical obligation to resist disclosure until the firm "has exhausted available avenues of appeal." In a footnote, the Committee explained that if the IRS obtained a court order to enforce the summons, a lawyer's failure to disclose the information pursuant to such an order would violate DR 7-102(A)(3). See also DC Ethics Opinion 126 (1983), discussed under 4.1:200, above.
DC Ethics Opinion 153 (1985) addressed a lawyer's obligations when the lawyer learns that a client has committed a fraud upon a tribunal, within the meaning of DR 7-102(B), by reason of non-disclosure of material information to an administrative agency. The Opinion stated that the lawyer must withdraw if the client refuses to rectify the problem; otherwise, the lawyer would run the risk of violating not only DR 7-102(A)(7) (assisting a client in fraudulent conduct) and DR 7-102(A)(4) (engaging in conduct involving fraud) but also DR 7-102(A)(3).
DC Ethics Opinion 119 (1983) addressed, inter alia, the ethical propriety of a lawyer's destroying memoranda that were potentially pertinent to future litigation. The Legal Ethics Committee, noting that both federal and District of Columbia law forbid destruction of documents in certain circumstances, observed, not too helpfully, that DR 7-102(A)(3) required that "in deciding whether to destroy the memoranda, the lawyer should take reasonable steps to determine the legality of such destruction."
4.2:100 Comparative Analysis of DC Rule
DC Rule 4.2 has always been quite different from the Model Rule, in both substance and form -- and most notably in the fact that whereas the black letter text of the Model Rule has always consisted of a single sentence, the DC Rule comprises four lettered paragraphs. Changes made in the Model Rule in 2002 as a result of the recommendations of the Ethics 2000 Commission and those made to the DC Rules in 2006 pursuant to recommendations of the Rules Review Committee have narrowed the disparity somewhat, but there remain a number of differences.
Even the captions of the two versions of the Rule differed until 2006, when the DC Rule's caption, "Communication Between Lawyers and Opposing Parties," was changed to conform to the Model Rule's "Communication with Person Represented by Counsel."
Paragraph (a) of the DC Rule is largely the same in substance as the single sentence comprising the Model Rule. Until the 2006 amendments, that paragraph, like the caption, referred to a "party" rather than a "person" represented by another lawyer, but this, too, was amended on the Rules Review Committee's recommendation to conform with the Model Rule. Another conforming change then made to paragraph (a) of the DC Rule was the insertion of the phrase "or a court order" after "authorized by law" -- a change that had been made in the Model Rule in 2002. After these changes, there remains just one notable difference between the DC Rule's paragraph (a) and the Model Rule: in the former but not the latter, the phrase "a lawyer shall not communicate" is followed by "or cause another to communicate" (a carryover from DR 7-104(A)(1) of the predecessor Code of Professional Responsibility). However, as was first pointed out in ABA Formal Opinion 92-362, Rule 4.2's restrictions on a lawyer's communications do not also apply to the lawyer's client, who has the right to communicate with an opposing party, and the lawyer may properly advise the client of this fact. Recognizing this, what is now the Model Rule's Comment , as amended in 2002, includes a statement that the Rule does not prohibit a lawyer from "advising a client concerning a communication that the client is legally entitled to make," and a similar assertion was added in 2006 to the DC Rule's renumbered Comment , along with the caveat that the client communication mustn't be "solely for the purpose of evading the restrictions imposed . . . by this Rule."
Paragraphs (b) and (c) of the DC Rule address the scope of Rule 4.2 with regard to communications with employees of a represented organization. Paragraph (b) provides that a lawyer may communicate with a "nonparty employee" of the opposing party without that party's consent, so long as the lawyer's identity and role are disclosed, and paragraph (c) defines a "party," for purposes of application of the Rule to organizational parties, as including a person who has authority to bind the party organization "as to the representation to which the communication relates." These provisions make the District of Columbia by far the most permissive jurisdiction with respect to contacts with employees of an adverse organizational party. The Model Rule addresses organizational parties only in what is now Comment  (formerly ), which, as amended in 2002, asserts that the Rule's prohibition extends to a "constituent" of a represented organization who "supervises, directs or regularly consults with the organization's lawyer" about the matter or whose act or omission is attributable to the organization. Although the 2002 amendment to the Model Rule's Comment narrowed the Rule's reach a bit by dropping the phrase "a person whose statement may constitute an admission on the part of the organization," it still gives the Model Rule a much broader sweep in barring contact with an opposing organization's personnel than is extended by the DC Rule.
Paragraph (d) of the DC Rule addresses its application to communications with employees of a governmental entity. It states that a lawyer may communicate with "government officials who have the authority to redress the grievances of the lawyer's client," so long as the lawyer discloses to the official who the lawyer is and that the lawyer is representing a client with a claim. This provision is elaborated by what are now Comments  and . The Model Rule addresses this subject only in the first sentence of what is now Comment , asserting that "communications authorized by law" (which are excepted from the basic prohibition) 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."
As is discussed more fully under the subcaption The Justice Department and Rule 4.2 in 4.2:220 below, the applicability of Rule 4.2 to investigative activities by or under the supervision of governmental lawyers was for a time a subject of considerable dispute between the Department of Justice and the American Bar Association. When the DC version of the Rules of Professional Conduct was adopted in 1990, however, its Rule 4.2 included a Comment  suggested by the then Deputy Attorney General that, unsurprisingly, supported the Department's position on the subject, stating that the Rule "is not intended to regulate the law enforcement activities of the United States or the District of Columbia" and went on to discuss the decisional law in the area at some length. The Peters Committee's review of the DC Rules resulted in a substantially condensed version of Comment , which, along with other changes recommended by the Peters Committee, became effective November 1, 1996. The amended Comment, later renumbered as , reads as follows:
This Rule is not intended to enlarge or restrict the law enforcement activities of the United States or the District of Columbia which are authorized and permissible under the Constitution and law of the United States or the District of Columbia. The "authorized by law" proviso to Rule 4.2(a) is intended to permit government conduct that is valid under this law. The proviso is not intended to freeze any particular substantive law, but is meant to accommodate substantive law as it may develop over time.
While the Peters Committee's proposals were being considered, the ABA had amended Model Rule 4.2 and its Comments, among other thing inserting a new Comment  that recognized, in a briefer and more concrete way than the DC Comment, that communications authorized by law included "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 applicable judicial precedent had approved such activities," but added that the Rule imposed ethical restrictions that went beyond those imposed by constitutional provisions. As revised in 2002, this Comment became part of Comment , the reference to judicial precedent was deleted, and additional emphasis was given to the assertion that 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.
4.2:200 Communication with a Represented Person
Note: A major source of frustration arising from Rule 4.2's prohibitions is the situation where a lawyer who has made an offer of settlement to opposing counsel suspects that the offer has not been communicated to that lawyer's client. As discussed under 1.4:101, above, at one point the Legal Ethics Committee proposed to address this problem by amending DR 7-101(A)(1) to impose an explicit duty upon a lawyer who receives an offer of settlement or a proffered plea bargain to communicate it to the lawyer's client. Such a provision was instead incorporated in DC Rule 1.4, as Rule 1.4(c).
In Cobell v. Norton, 212 FRD 14 (DDC 2002), motion for reconsideration denied, 213 FRD 33 (DDC 2003), the Court held that counsel for the defendants in a class action had violated DC Rule 4.2 when they permitted the defendants to send a written notice to individual class members relating to claims made on behalf of the class. In that case there had been a class determination under Fed. R. Civ. P Rule 23(d); the notices sent to class members provided them accounts showing the amount of their possible claims, and told them that unless they challenged the accounts within sixty days they would be bound by them.
DC Ethics Opinion 274 (1997) addressed the applicability of Rule 4.2(a) to public meetings held by a government agency which might be attended both by persons having claims subject to disposition by the agency and by lawyers employed by the agency. The agency involved was the Pension Benefit Guaranty Corporation (PBGC), which administers, among other things, a pension plan termination insurance program, under which it is generally appointed as statutory trustee of a terminated underfunded pension plan. Following such an appointment, the agency's established practice is to send a notice to known plan participants inviting them to attend a meeting convened by the agency, for the purpose of providing general information about the insurance system, describing the general limitations of the statutory guaranty, and answering questions. The meetings are ordinarily conducted by nonlawyer employees of PBGC, but a PBGC staff attorney attends the meeting for the purpose of providing advice to the nonlawyer on the conduct of the meeting. The inquiry to which the Opinion responded concerned a demand, based on Rule 4.2(a), by a lawyer representing 300 beneficiary claimants of a particular failed plan, that PBGC not hold the meeting, but rather deal directly and exclusively with her with regard to the claims of her clients. The Opinion concluded that, for a number of reasons, Rule 4.2(a) was not applicable in these circumstances.
DC Ethics Opinion 263 (1996) addressed the scope of the term "matter" in Rule 4.2(a), concluding that a civil protection order and a contempt proceeding for violation of such an order are the same "matter" for purposes of the Rule, so that a lawyer could not contact the person subject to the order about modification of its terms without consent of the lawyer representing him only in the contempt proceeding. [Opinion 263 is more fully dealt with under 1.4:400, above.]
DC Ethics Opinion 321 (2003) [which is discussed more fully under 4.3:200, below], addressing the responsibility of a lawyer for the conduct of an investigator sent to interview a petitioner who was seeking a contempt order against the lawyer's client for violation of a Civil Protection Order (CPO), rejected an argument that if the contempt petitioner had been represented by counsel, Rule 4.2 would not apply because the petitioner was not a party to the contempt proceeding but only a witness. The Opinion rejected this argument on the ground that the underlying CPO proceeding and the contempt proceeding arising out of it were both parts of the same "matter" within the meaning of that Rule.
DC Ethics Opinion 258 (1995) concluded that a lawyer proceeding pro se is subject to Rule 4.2 just as if the lawyer were representing another person, despite the statement in Comment  that "parties to a matter may communicate directly with each other." However, the Opinion states, the Rule applies to a lawyer acting on his or her own behalf only "when a dispute has matured to the point where a person would ordinarily retain counsel" -- a distinction that would exclude such things as a lawyer's negotiating with a business over a minor consumer dispute, complaining to a neighbor, or writing a letter of protest on an issue.
All the other precedent is under the Code. In United States v. Adonis, 744 F Supp 336 (DDC 1990), the court found that there had been prosecutorial impropriety in violation of DR 7-104, when the prosecutor was present at parts of interviews of a criminal defendant with a psychiatrist and psychologist, and gave him instructions with respect to the interviews, without notifying the defendant's counsel or giving him an opportunity to be present. The Court held that this misconduct did not justify dismissal of the charges but could be given weight in sentencing.
Boykins v. United States, 366 A.2d 133 (DC 1976), held that DR 7-104 was not violated when FBI agents, questioning a person about a criminal offense of which another was a prime suspect, elicited a confession to a state offense that was not the subject of the investigation.
In Mintwood v. Fonseca, 47 USLW 2019 (DC Super Ct 1978), the court held that agreements with represented tenants, negotiated by the lawyer for a landlord in blatant disregard of DR 7-104(A)(1), were void as obtained through undue influence.
DC Ethics Opinion 331 (2005) held that Rule 4.2 does not prelude a lawyer for one party from communicating with the opposing party’s in-house counsel regarding a matter, even when the opposing party has also retained outside counsel on the same matter.
DC Ethics Opinion 215 (1990) concluded that a lawyer is not prohibited by DR 7-104(A)(1) from speaking to a person represented by counsel without consent of that counsel, when the purpose of the conversation is to determine whether the person will retain the new lawyer and discharge the old one.
DC Ethics Opinion 178 (1987) responded to an inquiry from a lawyer who represented a target of a grand jury investigation and who wanted to interview a witness in the matter who was represented by counsel. That counsel had consented to the interview, but the inquiring lawyer proposed to record the interview secretly and had not so advised the witness's counsel. The Opinion concluded that the consent to the interview had not been informed consent, given that the witness's lawyer was not told of the intended surreptitious taping. The Opinion also concluded that the witness was a "party" within the meaning of the Rule, even though he was only to be a witness, and not a defendant.
DC Ethics Opinion 120 (1983) held that DR 7-104(A)(1) was violated by a lawyer sending a represented party a copy of a letter to that party's counsel containing a settlement offer.
DC Ethics Opinion 287 (1999) addressed the question whether DC Rule 4.2 prohibits unconsented communications with a former employee of an organizational party opponent, and concluded that it does not. The Opinion warned, however, that the communicating lawyer in such circumstances must not solicit from such a former employee information that is or reasonably should be known to be "protected by an established evidentiary privilege." To solicit such information, the Opinion held, would be to violate Rule 4.4's prohibition on use of "methods of obtaining evidence that violate the legal rights of [third parties]." (Moreover, as the Opinion pointed out in a footnote, the lawyer's use of such information may violate Rule 8.4(c).) The Opinion also asserted that the lawyer, before communicating with the former employee, must disclose his or her identity and the fact of the representation adverse to the former employer. Such disclosure is required by Rule 4.2 (b) and Comment  with respect to otherwise permissible contacts with current employees of an opposing party; the same disclosure with respect to former employees is required by Rule 4.3.
In United States v. Western Electric Co [discussed in 4.2:220, below], the court observed that a former employee of an organizational party is not a "party" for purposes of Rule 4.2 or DR 7-104, "for he lacks the authority to bind the company."
DC Ethics Opinion 129 (1983) addressed the issue of the permissibility, under DR 7-104(A)(1), of contacts with low-level management employees of a represented corporate party. The opinion, following ABA Informal Opinion 1410 (1978), concluded that the bar on communications with employees of a represented corporate party applies only to individuals who can "commit the corporation because of their authority as corporate officers or employees or for some other reason the law cloaks them with authority"; and that the "commitment" in question must refer to the litigation, not the subject matter of the litigation. Two members of the Committee dissented, taking the position that the Rule barred contact with employees of a corporate party at any level. The view of the Committee majority in this opinion was the source of paragraph (c) of DC Rule 4.2.
In Pearce v. EF Hutton Group, Inc., 1987 US Dist LEXIS 13236 (DDC 1987), a U.S. Magistrate approved a protective order prohibiting counsel for the plaintiff from conducting ex parte interviews of employees of the corporate defendant. Plaintiffs urged the position taken by the majority in DC Ethics Opinion 129 [discussed immediately above], to the effect that the Rule requires consent of opposing counsel only for contacts with employees of the organization who have authority to bind the organization with respect to the pending litigation -- the view subsequently embodied in DC Rule 4.2(c) -- but the Magistrate adopted instead the dissenting view in the Legal Ethics Committee, to the effect that the Rule barred communications with any employee who could bind the organization, by admissions or otherwise, as to matters that gave rise to the litigation.
In United States v. Lemonakis, 485 F.2d 941, 953-56 (DC Cir 1973), cert. denied, 415 US 989 (1974), the court held, in connection with a challenge to the use of conversations recorded by electronic surveillance, that neither the defendant's Sixth Amendment rights nor DR 7-104 had been violated even though the person investigated was known to be represented by counsel, since the matter was still in an investigative stage, and the informant wearing the "wire" was not acting as the "alter ego" of the U.S. Attorney's Office.
In United States v. Sutton, 801 F.2d 1346 (DC Cir 1986), the court upheld the denial of the defendant's motion to suppress tapes of a conversation the defendant had had after the government was aware that he was represented by counsel, holding, following Lemonakis, that DR 7-104 did not apply since the taping had occurred at the investigatory stage, before the initiation of judicial proceedings.
In United States v. Western Elec. Co., 1990 US Dist LEXIS 6178, 1990-1 Trade Cas. (CCH) ¦68,939 (DDC 1990), the court declined to prohibit the US Department of Justice from engaging in communications with former employees of US West in connection with an investigation of that company's compliance with a court decree. The court observed that it was well established that "law enforcement authorities may engage in pre-indictment, pre-arrest or investigative contacts with suspects known to be represented by counsel," [citing United States v. Lemonakis, inter alia], and that accepting US West's position would effectively require its former employees who might be witnesses to accept representation by company counsel and thereby deprive them of counsel of their own choice.
The Department of Justice and Rule 4.2
The proper application of the policy expressed in Rule 4.2 (and its predecessor, DR 7-104(A)(1)) to law enforcement has been a major area of controversy in recent years. In June 1989, Attorney General Thornburgh issued a memorandum which stated that MR 4.2, if broadly applied, would interfere with legitimate law enforcement techniques and objectives. [The full text of this Memorandum is published as an attachment to In re Doe, 801 F. Supp. 478, 489-93 (DNM 1992).] Thornburgh also announced that the Department would amend the Code of Federal Regulations to provide:
An attorney employed by the Department, and any individual acting at the direction of that attorney, is authorized to contact or communicate with any individual in the course of an investigation or prosecution unless the contact or communication is prohibited by the Constitution, statute, Executive Order, or applicable federal regulations.
In February 1989, the ABA House of Delegates unanimously passed a resolution declaring it to be ABA policy that Department of Justice lawyers may not be given a blanket exemption from the requirements of Rule 4.2. More recently, while some cases have declined to apply Rule 4.2 or DR 7-104 to law enforcement activities, in a number of cases courts have sought to impose sanctions on government lawyers for making direct contacts with represented parties or prosecutors have sought to have portions of state ethics rules held invalid. In such cases, the Department of Justice has taken the position that the conduct of the lawyer was within the "authorized by law" exception to Rule 4.2 or that federal law took precedence over the state ethics rule by virtue of the Supremacy Clause. Both of these propositions have been contested by defense counsel, who have argued, among other things, that no express statute or regulation authorizes the questioned conduct and that the Supremacy Clause is inapplicable for that reason and for the further reason that the state ethics rules are also imposed as federal rules by most federal district courts.
Of particular interest in this connection is a decision that arose out of a criminal case in the DC Superior Court, United States v. Smith, No. CR-F-9938-88. In that case, an Assistant United States Attorney made contact directly and through a police detective with a defendant known to be represented by the Public Defender's Office. A judge of the Superior Court held that the federal prosecutor had violated DR 7-104 by having contacts with defendant Smith, and referred the matter to Bar Counsel. See In re Doe, 801 F. Supp. at 480 (on removal from proceedings of the New Mexico Disciplinary Board in the Smith matter). Bar Counsel found that the District of Columbia had no disciplinary jurisdiction over the prosecutor, because the prosecutor was admitted only in New Mexico, and referred the matter to New Mexico authorities. However, in so doing, Bar Counsel:
rejected entirely the suggestion that Disciplinary Rule 7-104(A)(1) does not apply to criminal proceedings, . . . that the rule does not apply to criminal prosecutors performing their duties . . . [and] that the Supremacy Clause of the United States Constitution creates a bar to the prosecution of an AUSA in a state disciplinary proceeding for a disciplinary violation.
Id. at 481 (quoting Bar Counsel's memorandum). Subsequently, disciplinary proceedings were started in New Mexico. An effort by the United States to enjoin these proceedings failed in both New Mexico, see In re Doe, supra, and in the District of Columbia, see United States v. Ferrara, 847 F. Supp. 964 (DDC 1993), aff'd, 54 F.3d 825 (DC Cir 1995). The district courts in both Doe and Ferrara held that the Thornburgh Memorandum was not a federal law for Supremacy Clause purposes and did not shield the AUSA from disciplinary proceedings, though the Court of Appeals in Ferrara affirmed dismissal of the suit but on the ground of lack of personal jurisdiction. The disciplinary proceedings in New Mexico resulted in public censure, which was affirmed by the New Mexico Supreme Court in In re Howe, 1997 NM LEXIS 158 (1997).
Hoping to end the ongoing dispute in the courts, the Department of Justice, on November 20, 1992, issued proposed regulations creating "a uniform, bright-line set of rules governing communications with represented persons." 57 Fed Reg 54,737, 54,740. A revised version of the regulations was published for comment on July 26, 1993, 58 Fed Reg 39,978-94, and the regulations were finally adopted on August 4, 1994, 59 Fed Reg 39,928, and now appear at 28 CFR Part 77 -- Communications With Represented Persons. The regulations lay down detailed rules as to when and how a lawyer for the federal government may communicate with represented persons in both criminal and civil law enforcement proceedings. Communications authorized by the regulations are intended to constitute communications "authorized by law" within the meaning of MR 4.2 and DR 7-104(A)(1) of the Model Code. The regulations also assert that the Attorney General has exclusive authority over any asserted violation of the regulations.
See in this connection ABA Formal Opinion 95-396 (1995), discussing MR 4.2 generally and, in parts III and X, more particularly the application of the Rule to law enforcement proceedings and the Department of Justice regulations.
As Comment  to the Model Rule suggests, communications "authorized by law" include communications with government officials that are protected by the constitutional right of petition. They also include the service of process by a lawyer on a corporation or other party even though the lawyer knows the party is represented by counsel. See Hazard & Hodes, The Law of Lawyering § 42.109.
There are no rulings under Rule 4.2(d). DC Ethics Opinion 199 (1989) addressed a situation where government officials had asked a government lawyer to investigate allegations of impropriety within a particular agency. The lawyer made a written request for access to documents to the head of the agency, who had retained a lawyer to represent him personally. That lawyer insisted that requests addressed to his client be sent to him rather than directly to the client. The opinion concluded that DR 7-104(A)(1) required that the lawyer's demand be complied with, despite the fact that the investigation could have been done by a layman rather than a lawyer, the fact that the request was in writing, the fact that the inquirer might have been able to get the records without the assistance of the agency head, and the fact that the agency head might have been required by applicable law to produce the governmental files.
DC Ethics Opinion 80 (1979) addressed the application of DR 7-104(A)(1) to communications with government officials. It concluded (1) that the Rule does apply to such communications; (2) that the government officials deemed to be the governmental parties are those who have the "power to commit or bind the government with respect to the subject matter"; and (3) that the Rule applies only where the government is a relatively formal "party" -- in litigation, negotiation, licensing, etc. This opinion was an opinion of "broad scope," which had been published for comment in draft form. It was followed by the publication for comment of alternative drafts of revisions of DR 7-104(A), and the ultimate result of that process was paragraph (d) of DC Rule 4.2.
There appear to be no pertinent DC court decisions or ethics opinions on this subject.
4.3:100 Comparative Analysis of DC Rule
As originally adopted, DC Rule 4.3 was different in format from its Model Rule counterpart but quite close in substance. While the black letter text of the Model Rule was a single paragraph consisting of two sentences, the DC Rule consisted of an introductory phrase indicating the circumstances in which the Rule's prohibitions applied (i.e., where a lawyer representing a client is dealing with an unrepresented person) followed by two lettered paragraphs setting out the applicable prohibitions. Paragraph (a) prohibited such a lawyer from giving advice to the unrepresented person, other than the advice to have counsel, if that person's interests might be in conflict with those of the lawyer's client, carrying forward the substance of DR 7-104(A)(2). This prohibition was not originally in the text of the Model Rule, but appeared only in its Comment . On the recommendation of the Ethics 2000 Commission, however, in 2002 the prohibition was taken out of the Comment and added to the Rule itself, as a third sentence.
Paragraph (b) of the DC Rule as originally adopted consisted of two sentences, setting out the two provisions that comprised the entirety of the Model Rule, i.e., a prohibition against stating or implying that the lawyer is disinterested; and a requirement that when the lawyer knows the unrepresented person misunderstands the lawyer's role, the lawyer must make reasonable efforts to correct the misunderstanding.
The only change made in 2006 in the text of the DC Rule, on recommendation of the Rules Review Committee, was to its format: the introductory phrase is now labeled as paragraph (a) and is followed by subparagraphs (1) and (2), containing the prohibitions on giving advice to the unrepresented person and stating or implying that the lawyer is disinterested, respectively; and the remain substantive provision, regarding the obligation of correcting misunderstandings of the unrepresented person, has become paragraph (b) of the Rule.
As originally adopted, Model Rule 4.3 was accompanied by a single Comment, pointing out that an unrepresented person, if not otherwise advised, might assume that a lawyer is disinterested, and, as mentioned above, cautioning that a lawyer should not give advice to such a person, other than advice to get a lawyer. The DC Rule at that time had three Comments, the first of which was largely similar to the Model Rule's Comment. In connection with the 2002 changes to the Model Rules, the sentence in the Model Rule's Comment about a lawyer's giving advice to an unrepresented person was moved to the text of the Rule and replaced by language pointing out that in order to avoid misunderstanding, a lawyer may need to identify the lawyer's client and explain that the client's interests are adverse to the unrepresented person. In addition, in 2002 a new Comment  was added, part of which was copied from Comment  to the DC Rule, pointing out that the Rule distinguished between situations involving unrepresented persons whose interests may be adverse to those of the lawyer's client and those where there was no such adverseness of interest. The other part of the new Comment  to the Model Rule pointed out that the Rule does not prohibit a lawyer's negotiating the terms of a transaction or settling a dispute with such a person, so long as certain requirements were satisfied. In connection with the 2006 changes to the DC Rules, the substance of this second part of the new Comment  to the Model Rule was copied as a new Comment  to the DC Rule, and what had been Comment  was renumbered as Comment . That latter Comment, which had been added to the DC Rule by the Court of Appeals in connection with its original adoption of the DC Rules in 1990, asserts that the Rule is "not intended to restrict in any way law enforcement efforts by government lawyers that are consistent with constitutional requirements and applicable federal law." This is in effect a companion to Comment  to DC Rule 4.2 (discussed in 4.2:101 above).
4.3:200 Dealing with Unrepresented Person
DC Ethics Opinion 321 (2003) addressed the ethical obligations of a lawyer with respect to the conduct of an investigator sent by the lawyer to interview a person not represented by counsel, in the context where the person to be interviewed was seeking a contempt order against the lawyer's client, for violation of a Civil Protection Order (CPO). The Opinion recognized that the lawyer's responsibility for the investigator's actions rested on Rules 5.3 and 8.4(a), but that the Rule laying out the standards to be observed was Rule 4.3. The Opinion made clear that although only paragraph (a) of Rule 4.3 refers to a lawyer dealing with an unrepresented person whose interests are or may be adverse to those of the lawyer's client, paragraph (b) of the Rule is also fully applicable, so that the lawyer - and therefore the investigator acting under the direction of the lawyer - must not only refrain from giving advice (other than advice to secure counsel) to the interviewed person, as provided by paragraph (a), but also refrain from stating or implying that the [interviewer] is disinterested, and make reasonable efforts to correct any misunderstanding that the [interviewer] reasonably should know that the interviewed person entertains as to the [interviewer's] role in the matter, per paragraph (b). In this connection, the Opinion rejected the suggestion that "it can generally be inferred that unrepresented petitioners in domestic violence cases who decide to speak to a respondent's investigator understand the investigator's role," but nonetheless made clear that the [interviewer] must be alert to a possible misunderstanding by such a petitioner, and must be careful not to make representations that may be misunderstood. The Opinion also rejected the suggestion that Rule 4.3 imposes an affirmative obligation to advise unrepresented persons of their right to independent legal advice before signing any substantive legal documents, including releases; although the [interviewer] "must take great care" to ensure that unrepresented persons understand that the presentation of documents for them to sign does not amount to offering advice to sign them.
Finally, the Opinion addressed an argument that even if the petitioner in the particular hypothetical case under discussion had been represented by counsel, Rule 4.2 would not apply because the interviewed petitioner was not a party to the contempt proceeding, but only a witness. The Opinion rejected this argument on the ground that the underlying CPO proceeding and the contempt proceeding arising out of it were both parts of the same "matter" within the meaning of Rule 4.2.
DC Ethics Opinion 302 (2000) [which is discussed more fully under 7.1:200, below], addressing issues relating to a lawyer's use of internet-based web pages to solicit plaintiffs for a class action lawsuit, suggests that Rule 4.3 might be violated if the lawyer failed to disclose the lawyer's financial interest in the lawsuit.
DC Ethics Opinion 287 (1999) [which is more fully discussed under 4.2:210, above] held that Rule 4.2 does not prohibit communication with a former employee of an organizational adversary known to be represented by counsel, but that the adversity of interest between the lawyer's client and the former employee of the person sought to be communicated with underscores the importance of the disclosures required of the lawyer by Rule 4.3.
DC Ethics Opinion 247 (1994) concluded that, when a lawyer performed some services for both seller and purchaser in a residential real estate transaction, did not advise the seller that he represented only the purchaser, and did not specify his relationship to the seller, the lawyer could not represent the purchaser against the seller in a subsequent dispute about the sale. The Opinion points, among other things, to Rule 4.3 (as well as Rule 2.2) as emphasizing the importance of making the lawyer's role, duties and nonduties clear, when those matters could be misunderstood by multiple participants in a matter.
DC Ethics Opinion 240 (1993) responds to an inquiry by the D.C. Corporation Counsel, whose office provides representation both for individual petitioners and for the government in actions against non-supporting spouses under the Child Support Enforcement Program. Among other things, the Opinion emphasizes that there are circumstances where the individual affected by a matter may think that she is being represented by the lawyer from the Corporation Counsel's office, when in fact the client is not that individual but rather the Department of Human Services: in such circumstances, the Opinion states, Rule 4.3 requires that the lawyer not give advice if the person's interests might conflict with the interests of the lawyer's governmental client and must make clear that he or she represents the government and not the individual.
DC Ethics Opinion 159 (1985) addresses issues relating to the representation by a lawyer of a cooperative association and individual members thereof. In respect of one such issue, the Opinion states that, if the lawyer represents the association, the lawyer may not represent an individual member making a claim against the board of the association, or, by reason of DR 7-104(A)(2), give any advice to such a member other than advice to seek counsel.
DC Ethics Opinion 148 (1985) discusses various issues relating to the obligations of a lawyer representing a government agency. It asserts, among other things, that the lawyer's client is the agency and not its employees as individuals, and unless the government lawyer actually represents a government employee, the lawyer cannot, by reason of DR 7-104(A)(2), give the employee legal advice (except the advice to obtain counsel) and, as pointed out under 1.13:400 above, is ethically obligated to advise the employee that the lawyer does not represent the employee.
DC Ethics Opinion 129 (1983), which principally addresses the applicability of the anti-contact provision of DR 7-104(A)(1) to contacts with employees of a represented organizational party [and is therefore discussed at greater length under 4.2:210 above], also notes that in contacting employees of such an organization, the lawyer must take care not to violate DR 7-104(A)(2).
DC Ethics Opinion 326 (2004) held that a lawyer approached by an unrepresented person seeking representation in a matter that is or would be adverse to a party with whom the lawyer has an on-going lawyer-client relationship may recommend competent counsel.
4.4:100 Comparative Analysis of DC Rule
As originally adopted, DC Rule 4.4 was identical to Model Rule 4.4, in both its black letter text and the wording of its single brief Comment. In 2002, as a result of the recommendations of the Ethics 2000 Commission, both the text and the commentary of the Model Rule were revised to address the responsibilities of a lawyer who receives documents that have been inadvertently sent by an opposing party or lawyer; and in 2006, per the recommendations of the DC Rules Review Committee, changes were made in the DC Rule's text and commentary to address the same circumstances. The changes made in the two versions of Rule 4.4 were not, however, identical.
The differences in the changes that were made in the two versions of the Rule reflected in part the fact that both the ABA Standing Committee on Ethics and Professional Responsibility and the DC Bar's Legal Ethics Committee had issued opinions that addressed the problem of inadvertently sent documents, but had reached somewhat different conclusions as to what the obligations of a lawyer receiving documents should be. ABA Formal Opinion 92-368 had concluded that when in such circumstances the receiving lawyer is aware of the fact that the documents were sent in error, the lawyer is obligated to refrain from examining the documents and must notify the sender of their receipt and abide the latter's instructions as to how the documents should be dealt with. Three years later, DC Ethics Opinion 256 (1995) came to the more realistic conclusion that if the receiving lawyer is aware before reading a document that it was sent inadvertently, the lawyer should refrain from reading it and notify the sender; but that if the receiving lawyer reads the document before realizing that it was mistakenly sent, the lawyer is under no obligation to return the document or to refrain from using it, though the lawyer must notify the sender that the document has been received.
The Ethics 2000 Commission, recognizing that Formal Opinion 92-368 had been much criticized, did not recommend changing the Model Rule to reflect that Opinion's conclusions but instead proposed that the Rule require only that when the receiving lawyer knows or reasonably should know that the documents were inadvertently sent, the lawyer should notify the sending lawyer, and leave that lawyer with the responsibility of doing whatever can be done to protect the interests of that lawyer's client. Specifically, it recommended that a new single-sentence paragraph (b) to that effect be added to the Rule (and that the single sentence that had previously constituted the entirety of the Rule be redesignated as paragraph (a)); and this change was made in 2002. The DC Rules Review Committee similarly recommended, and the DC Court of Appeals in 2006 approved, the addition to the DC Rule of a brief new paragraph (b), imposing an obligation on the receiving lawyer only if that lawyer knows before reading a document that it was inadvertently sent, but the obligation is not only to notify the sending lawyer of the document's receipt but in addition to abide by that lawyer's instructions regarding the return or destruction of the document. The Committee also recommended the insertion of knowingly into the second clause of paragraph (a), referring to the use of methods of obtaining evidence that violate the rights of third persons.
The foregoing changes in the black letter text of the two versions of Rule 4.4 were accompanied in each case by two new Comments elaborating on the new paragraph (b). In addition, the Ethics 2000 Commission recommended that the second sentence of the original single Comment, identifying some of the rights of third persons protected by the Rule, be amended to add mention of unwarranted intrusions into privileged relationships such as the lawyer-client relationship; and the Rules Review Committee recommended that the same change be made in Comment  to the DC Rule.
ABA Formal Opinion 92-368, by now disowned by the revised Model Rule 4.4, was formally repealed on October 1,2005 by ABA Formal Opinion 05-437.
The Model Code contained a number of provisions dealing with a lawyer's obligations towards various categories of third persons: DR 7-102(A)(1) provided that a lawyer must not "take . . . action on behalf of his client when he knows or when it is obvious that such action would serve merely to harass or maliciously injure another"; DR 7-106(C)(2) provided that a lawyer must not "[a]sk any question that he has no reasonable basis to believe is relevant to the case and that is intended to degrade a witness or other person"; DR 7-108(D) provided that, "[a]fter discharge of the jury . . . the lawyer shall not ask questions or make comments to a member of that jury that are calculated merely to harass or embarrass the juror"; and DR 7-108(E) provided that a lawyer "shall not conduct . . . a vexatious or harassing investigation of either a venireman or a juror." Rule 4.4 puts the common theme of these scattered provisions into a single Rule applicable to all third parties, irrespective of their specific status.
4.4:200 Disregard of Rights or Interests of Third Persons
In Shepherd v. American Broadcasting Cos., Inc., 151 F.R.D. 194 (DDC 1993), the court imposed upon the defendant the sanction of default on the basis of a number of instances of what the court found to be misconduct, including a violation of Rule 4.4 by reason of a lawyer for the defendant having "harassed" a witness who had previously made clear that she did not want to talk to counsel, by confronting her in the company of her colleagues and asking her to talk to him. Id. at 204-06. The DC Circuit reversed and remanded, 62 F.3d 1469 (DC Cir 1995). The Court of Appeals observed that, "[w]hile it is not the district court's role to enforce the rules of professional conduct . . ., we think Rule 4.4 provides a sound standard to guide a district court's use of its inherent power to sanction an attorney for harassment," but held that Rule 4.4 does not depend on the third person's perception of the lawyer's conduct, but rather on whether, from the attorney's perspective, "the attorney has 'no substantial purpose' other than to embarrass, delay or burden a third person"; and that here the district court had found that the lawyer had a substantial purpose in approaching the witness, namely that he "needed information." Id. at 1483.
DC Ethics Opinion 287 (1999) [which is more fully discussed under 4.2:210, above] pointed out that a lawyer communicating, permissibly (so far as Rule 4.2 is concerned), with a former employee of an opposing organizational party, would nonetheless violate Rule 4.4 in seeking to elicit information "known to be protected by an established evidentiary privilege."
In DC Ethics Opinion 285 (1998), the Legal Ethics Committee addressed four different circumstances involving law firms employing, or using as consultants, nonlawyers who are former government employees. The first such circumstance was one where the nonlawyer had worked directly with government lawyers on a matter in which the law firm is now involved; in the second, the nonlawyer had no direct contact with government lawyers but had been exposed to confidential government information; in the third, the government is not a party to a case in which the firm is engaged but may still be harmed by the abuse of confidential government information in the nonlawyer's possession; and in the fourth, the nonlawyer had simply participated in government policymaking. The Committee noted that the Rules of Professional Conduct do not apply directly to nonlawyers, but that certain Rules (notably Rules 5.3 and 8.4(a)) impose on lawyers responsibility for conduct of nonlawyers associated with them. The Committee then held that in the first scenario, where the nonlawyer had worked with government lawyers on a case in which the firm is engaged, screening of the nonlawyer is necessary -- and adequate -- to avoid imputed disqualification of the employer law firm, citing, inter alia, DC Ethics Opinion 227 (1992). As to the second scenario, where the nonlawyer had had no contact with government lawyers but nonetheless possessed confidential government information, the Committee concluded that, there being no imputed professional obligation to preserve confidences or secrets, there would be no need to screen the former employee. As to the fourth scenario, where the former government employee had participated in government policymaking, the Committee observed that Rule 1.11 does not operate to disqualify former government lawyers by reason of participation in "[t]he making of rules of general applicability and the establishment of general policy," Rule 1.11, Comment , and concluded in consequence that such participation should not disqualify nonlawyers, either. Finally, the Committee pointed out, with reference to the last three scenarios, that a law firm's inducing a former government employee to violate obligations of confidence that derived from a source other than providing assistance to government lawyers could involve a violation of Rule 4.4.
DC Ethics Opinion 31 (1977) held that, if a lawyer who was a congressional committee staff person required a witness who was a target of a pending grand jury investigation to appear at televised hearings to be questioned when the committee had been notified in advance that the witness would exercise his constitutional privilege not to answer any questions, this would violate DR 7-106(C)(2)'s provision that "in appearing in his professional capacity before a tribunal, a lawyer shall not . . . [a]sk any question that he has no reasonable basis to believe is relevant to the case and that is intended to degrade a witness."
There appear to be no pertinent DC court decisions or ethics opinions on this subject.
4.4:220 Threatening Prosecution [see 8.4:900]
In In re Waller, 524 A.2d 748, 754 (DC 1987), the report of the Board on Professional Responsibility, approved by the court, noted that the respondent's prior record included an informal admonition for violations of, inter alia, DR 7-102(A)(1), for "threatening legal action for the purpose of harassment." [See also 8.4:900, below.]