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Ohio Legal Ethics Narrative

IV. transactions with persons other than clients

4.2 RULE 4.2 Communication with Person Represented by Counsel

4.2:100 Comparative Analysis of Ohio Rule

4.2:101 Model Rule Comparison

Ohio Rule 4.2 is identical to the Model Rule.

4.2:102 Ohio Code Comparison

The following section of the Ohio Code of Professional Responsibility is listed in the Correlation Table (Appendix A to the Rules) as related to Ohio Rule 4.2: DR 7-104(A)(1).

4.2:200 Communication with a Represented Person

  • Primary Ohio References: Ohio Rule 4.2
  • Background References: ABA Model Rule 4.2
  • Ohio Commentary: Greenbaum, Lawyer's Guide to the Ohio Code of Professional Responsibility §§ 7.72-7.74
  • Commentary: ABA/BNA § 71:301; ALI-LGL §§ 99-102; Wolfram § 11.6.2

The material in this section is, in part, excerpted and adapted from Arthur F. Greenbaum, Lawyer's Guide to the Ohio Code of Professional Responsibility § 7.72 (1996).

Ohio Rule 4.2 precludes a lawyer from communicating on the subject of the representation with a person whom the lawyer knows is represented by another lawyer in that matter, unless the other person's lawyer consents to the communication or the communication is authorized by law or court order. E.g., under the former OHCPR analog (OH DR 7-104(A)(1)), Richland County Bar Ass'n v. Bourdeau, 109 Ohio St.3d 158, 2006 Ohio 2039, 846 N.E.2d 525 (respondent, representing husband in domestic relations matter, called wife, who was in hiding with couple's child, at her cell-phone number without her lawyer's consent and left message that frightened wife; DR 7-104(A)(1) violated); Akron Bar Ass'n v. Holder, 105 Ohio St.3d 443, 2005 Ohio 2695, 828 N.E.2d 621 (direct communication with represented party without consent of party's lawyer violated 7-104(A)(1)); Office of Disciplinary Counsel v. Johnson, 100 Ohio St.3d 291, 2003 Ohio 5753, 798 N.E.2d 604 (in grandparent visitation dispute, former rule violated when respondent called paternal grandmother to ask for her attorney's home phone number, "even though [respondent] knew that the grandmother was represented and that the grandmother's attorney had not given respondent permission to contact his client," id. at para. 12; moreover, respondent subsequently went to grandmother's home and harassed her in attempt to have visitation arrangements changed); Columbus Bar Ass'n v. Sladoje, 97 Ohio St.3d 116, 2002 Ohio 5350, 776 N.E.2d 1057 (Rule violated when respondent, representing client during meeting with her former husband's two sons regarding division of ex-husband's estate assets, learned at meeting that sons were represented by counsel; "however, [respondent] did not consult the sons' attorney at all before allowing them to execute the agreement with their ex-stepmother," id. at para. 6); Toledo Bar Ass'n v. Dewey, 92 Ohio St.3d 419, 750 N.E.2d 1118 (2001) (direct telephone contact with vendors by vendee's lawyer (who knew vendors' attorney was out of town), demanding that document necessary to transaction be signed without delay, violated former disciplinary rule).

This restriction responds to several concerns. See generally Charles W. Wolfram, Modern Legal Ethics § 11.6.2 (1986) (summarizing underlying policies). One concern is that if ex parte communications were allowed, a lawyer might use them in an overreaching manner, such as to trick a person into making an unwarranted admission. Ohio Rule 4.2 cmt. [1]. See, e.g., United States v. Beiersdorf-Jobst, Inc., 980 F. Supp. 257 (N.D. Ohio 1997) (applying former OHCPR); Bd. of Comm'rs on Grievances & Discipline Op. 90-20, 1990 Ohio Griev. Discip. LEXIS 5 (Aug. 17, 1990) (same). A related concern is that such ex parte communication could functionally strip the third party of the full benefit of representation and advice from his own lawyer that he should have in dealing with another party's attorney. Rule 4.2 cmt. [1]. Finally, the Rule protects against a lawyer using the ex parte communication as a way to undercut the lawyer-client relationship of the third party and his lawyer. Id.

Several aspects of this provision must be considered in applying the Rule.

First, Ohio Rule 4.2 applies only to communications made by a lawyer during the course of his representation of a client "about the subject of the representation." Communications not on the subject of the representation do not fall within this provision. Rule 4.2 cmt. [4]. But to steer clear of ethical difficulty, the Board advised in connection with former OH DR 7-104(A)(1) that a lawyer "refrain from any conversation [with the represented party] even remotely related to the subject matter of the representation," Bd. of Comm'rs on Grievances & Discipline Op. 88-32, 1988 Ohio Griev. Discip. LEXIS 15, at *3 (Dec. 16, 1988). Nor has the Ohio Supreme Court been sympathetic to attempts by counsel to manipulate this factor.  Toledo Bar Ass'n v. Savage, 74 Ohio St.3d 183, 657 N.E.2d 507 (1995) (rejecting arguments that communications were not concerning subject of representation). A 2006 Board opinion, however, opined that one area not within the 7-104(A)(1) prohibition with respect to communication "on the subject of the representation," at least in the context of communication by a lawyer occupying the dual role of guardian ad litem and attorney for a minor child, is "[c]ommunication that is administrative in nature, such as scheduling appointments and meetings." Bd. of Comm'rs on Grievances & Discipline Op. 2006-5, 2006 Ohio Griev. Discip. LEXIS 3, at *1 (June 9, 2006). A related, and more basic point, is that the Rule deals with "communicat[ions]" not something else. See Insituform of N. Am., Inc. v. Midwest Pipelines, Inc. 139 F.R.D. 622 (S.D. Ohio 1991) (testimony obtained in violation of former disciplinary rule excluded; observations by plaintiff's lawyer while on defendant's property were not).

Second, the restriction applies only when the lawyer "knows" (including knowledge inferred from the circumstances, Rule 1.0(g)) that the third party is represented by counsel in the matter. Ohio Rule 4.2 cmt. [8]. This requires knowledge of two separate factors: (1) that the person is represented by counsel, and (2) that this representation includes the matter to which the communication pertains. Without such knowledge, the communication does not violate Rule 4.2 and is instead controlled by Ohio Rule 4.3. See Rule 4.2 cmt. [9]. Accord ABA Formal Opinion 95-396 (July 28, 1995) ("Rule 4.2 does not, like Rule 4.3, imply a duty to inquire." Id. at 13.). See, e.g., under the former OHCPR, Toledo Bar Ass'n v. Carrigan, 71 Ohio St.3d 256, 643 N.E.2d 135 (1994) (failure to show that lawyer had knowledge third party was represented by counsel led to dismissal of OH DR 7-104(A)(1) charge). But if that knowledge was present, the former rule was violated. See Toledo Bar Ass'n v. Savage, 74 Ohio St.3d 183, 657 N.E.2d 507 (1995) (failure of opposing counsel to confirm representation in writing, as promised, did not absolve lawyer of his duties under disciplinary rule, since attorney making contact still had knowledge of the representation). Compare Ohio State Bar Ass'n Informal Op. 88-6 (Oct. 27, 1988), which opined that where the party to be contacted has been represented by counsel but is attempting to terminate that relationship, the lawyer should not contact the party directly until he confirms that the representation has actually been terminated. Proceeding with the contact because the lawyer thinks he "knows" that the third party is no longer represented by counsel would be improper. Id. (statements by third party that she has fired her lawyer insufficient; confirmation should be obtained from the lawyer that his services have been terminated).

Third, the restriction does not apply if the attorney for the third party consents to the ex parte communication or if it is authorized by law or court order. For example, if certain government records are made available to the public by statute, requesting them directly from the government rather than through the government's attorney would be permitted under this exception because the communication is authorized by law. See Cincinnati Bar Ass'n Op. 90-91-01 (n.d.). Board Opinion 2006-5 also makes clear that "authorized by law" under DR 7-104(A)(1) includes authorization "through a court rule or court order." Bd. of Comm'rs on Grievances & Discipline Op. 2006-5, 2006 Ohio Griev. Discip. LEXIS 3, at *1 (June 9, 2006).

Where it applies, however, this prohibition is a broad one and covers both oral and written communications with a represented party. Under the former OHCPR, even sending the represented party a copy of a letter to opposing counsel violated this provision. Ohio State Bar Ass'n Informal Op. 78-1 (Jan. 23, 1978). And communication regarding the subject of the representation is improper even if:

  • the other party initiates or consents to the contact. Ohio Rule 4.2 cmt. [3]. See, under the Code, Toledo Bar Ass'n v. Dewey, 96 Ohio St.3d 148, 2002 Ohio 3608, 772 N.E.2d 630 (other party initiated contact). (This is the same Dewey that violated the same rule in Toledo Bar Ass'n v. Dewey, 92 Ohio St.3d 419, 750 N.E.2d 1118 (2001), cited above; this time, instead of a public reprimand, he was suspended for two years with one year stayed). But see State v. Frazier, 73 Ohio St.3d 323, 652 N.E.2d 1000 (1995) (finding no violation of former rule in meeting between prosecutor and criminal defendant represented by counsel, where defendant initiated the conversation, was clearly informed of and waived right to have counsel present and where counsel was summoned upon defendant's subsequent request).

    The position on this issue taken by Rule 4.2 (contrary to Frazier), is set forth in Comment [5] -- a government lawyer "must" comply with this Rule in dealing with the accused in a criminal matter, but communications authorized by law "may" include investigative activities by government lawyers or their agents prior to criminal or civil enforcement proceedings.  Ohio Rule 4.2 cmt. [5].

  • a telephone call to executor is made by the lawyer on the other side only when the lawyer is unable to contact the executor's lawyer, whose telephone had been disconnected, Cleveland Bar Ass'n v. Rossi, 81 Ohio St.3d 195, 690 N.E.2d 501 (1998);

  • the contact itself is accidental, Cleveland Bar Ass'n Op. 86 (Sept. 5, 1973); or

  • there is good cause to seek direct contact, such as when opposing counsel fails to convey a settlement offer to the third party. Bd. of Comm'rs on Grievances & Discipline Op. 92-7, 1992 Ohio Griev. Discip. LEXIS 14 (April 10, 1992) (citing, with approval, Pennsylvania Bar Association opinion to this effect). In this situation, court intervention may be necessary to assure that the offers are conveyed.

According to the Ohio Supreme Court, a public reprimand was an appropriate sanction for direct communication with adverse parties represented by counsel about the subject of the representation and without their counsel's consent, in violation of former OH DR 7-104(A)(1). Toledo Bar Ass'n v. Mansour-Ismail, 86 Ohio St.3d 27, 711 N.E.2d 223 (1999). Accord Richland County Bar Ass'n v. Bourdeau, 109 Ohio St.3d 158, 2006 Ohio 2039, 846 N.E.2d 525.

Although the former disciplinary rule spoke of communication with a "party," it was not so limited, even though used most often in the context of litigation. Instead, it was intended to address any circumstance in which another person was represented by counsel in a "matter" and the communication was directed to "the subject of the representation." Bd. of Comm'rs on Grievances & Discipline Op. 2006-5, 2006 Ohio Griev. Discip. LEXIS 3 (June 9, 2006). Ohio State Bar Ass'n Informal Op. 76-15 (Nov. 11, 1976). Rule 4.2 confirms this more expansive reading by making express reference to communications on the subject of the representation with any represented "person," rather than a "party."

The prohibition against communicating with persons represented by counsel extends also to a lawyer's conduct in causing another person, such as an investigator or the lawyer's own client, to make contact with a represented party. Ohio Rule 4.2 cmt. [4]. See Ohio Rule 8.4(a) and section 8.4:200. A Code case in which this aspect of DR 7-104(A)(1) was invoked is Disciplinary Counsel v. Sartini, 114 Ohio St.3d 205, 2007 Ohio 3601, 871 N.E.2d 543. In Sartini the Ashtabula County Prosecutor and his chief assistant were involved in plea negotiations with a public defender representing a defendant charged with drug trafficking and aggravated vehicular homicide. At one point in a meeting between the prosecutors and the defendant's mother about the facts in the case, the mother found out that her son had rejected a plea offer that the mother thought was fair; she asked the prosecutors if she could speak to her son and ask him to reconsider.  As a result, the defendant's mother, outside the presence of the public defender, acted as an intermediary in plea negotiations; as the court put it in its holding granting the motion to withdraw the guilty plea, based on these contacts, "'Rhonda Hatfield became, in effect, the agent of the State of Ohio in inducing her son to accept the five year plan' and Hatfield's right to counsel had been violated." Id. at para. 15. The Court found that respondents had violated 7-104(A)(1) "by conducting a plea negotiation with Hatfield through his mother, and without the participation of Hatfield's counsel," id. at para. 17, and imposed the sanction "repeatedly" imposed for violation of that disciplinary rule, a public reprimand.  See id. at para. 18.

While a lawyer may not cause another person to communicate with a represented party, as in Santini, a lawyer is not required to advise a client, who expresses an intent to contact an opposing party directly, not to do so. ABA Formal Op. 84-350 (1984). Particularly where the parties have an ongoing relationship, such contact often is unavoidable and in any event does not violate the Rule. Ohio Rule 4.2 cmt. [4]. Accord ABA, Annotated Model Rules of Professional Conduct 393 (6th ed. 2007) (commentary) ("Rule 4.2 does not restrict participants in a matter from communicating with each other directly, whether or not they have their own lawyers."). In fact, the lawyer may even advise the client about the prospective communication. Ohio Rule 4.2 cmt. [4]. A violation occurs only when the lawyer causes the contact as an attempt to circumvent the Rule's restrictions. See Trumbull County Bar Ass'n v. Makridis, 77 Ohio St.3d 73, 671 N.E.2d 31 (1996) (lawyer suggested that client call opposition party to discuss client's anticipated testimony at forthcoming trial and then, "forgetting" that the other party was represented, took over the conversation).

Even if the lawyer is representing himself, communication on the subject of the representation with another person who is known to be represented would violate the Rule. See, under the Code, Office of Disciplinary Counsel v. Donnell, 79 Ohio St.3d 501, 684 N.E.2d 36 (1997) (lawyer's ex parte contact with ex-wife known to be represented by counsel violated former OH DR 7-104(A)(1)).

And even if the lawyer occupies a dual role, such as guardian ad litem and attorney for a minor child, the anti-contact rule applies with full force, without any attempt to parse whether the communication was made in one role or the other. Bd. of Comm'rs on Grievances & Discipline Op. 2006-5, 2006 Ohio Griev. Discip. LEXIS 3 (June 9, 2006).

Finally, the reader should be aware that the ABA has issued a Formal Opinion addressing the question under MR 4.2 (identical to the Ohio Rule) whether that rule is violated if a lawyer involved in a matter with an entity can contact the entity's in-house counsel without obtaining the prior consent of the entity's outside counsel.  The answer in ABA Formal Op. 06-443 (Aug. 5, 2006) is that such conduct does not violate Rule 4.2.  While personal war-stories generally have no place in a treatise like this, one of the authors cannot resist the temptation to recount an event of 20 or so years ago, when he was under extreme time pressure to close a settlement of a litigated matter and the outside counsel was unavailable.  The author chose to call the in-house counsel for the corporation on the other side and the deal was done.  Shortly thereafter, he received a telephone call from the missing outside counsel, who excoriated the author for making an end-run around him in doing what needed to be done for the client.  Many years later, vindication!, according to Opinion 06-443: "The purpose of Rule 4.2 is to prevent a skilled advocate from taking advantage of non-lawyer.  To forbid an opposing lawyer from contacting inside counsel is inimical to the way the legal system works between counsel regarding matters in dispute."  Id.

4.2:210 "Represented Person" (Contact with an Agent or Employee of a Represented Entity)

The material in this section is, in part, excerpted and adapted from Arthur F. Greenbaum, Lawyer's Guide to the Ohio Code of Professional Responsibility § 7.74 (1996).

Problems arise in trying to determine who should be considered the client in actions involving a corporation or other entity. Like any represented party, the interests of the corporation deserve protection. On the other hand, if every employee, past and present, is considered to be part of the corporate entity, too great an impediment might be placed on those who seek information from or about the entity. Particularly in litigation, access is needed to get an unfiltered view of the underlying conduct and to secure information sufficient to determine that a suit ethically can be filed.

Nationwide, substantial disagreement existed over which former and current corporate employees should be considered as part of the corporate entity for purposes of the Rule. See generally ABA, Annotated Model Rules of Professional Conduct 399-400 (6th ed. 2007) (commentary).

Resolution of this issue by Ohio Rule 4.2 (and MR 4.2) is found in Comment [7], which provides that while consent of the organization's lawyer is not required for communication with a former constituent, there can be no direct communication with a current constituent

who supervises, directs or regularly consults with her 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.

Ohio Rule 4.2 cmt. [7].

This is consistent with the latest word by the BCGD on the issue under the former OHCPR in Bd. of Comm'rs on Grievances & Discipline Op. 2005-3, 2005 Ohio Griev. Discip. LEXIS 3 (Feb. 4, 2005), adopting the language of MR 4.2 cmt. [7], which in turn has been adopted (except for deletion of cross-references to Rules 3.4(f) and 4.4) as Ohio Rule 4.2 cmt. [7]. See 2005 Ohio Griev. Discip. LEXIS 3, at *1 (syllabus) (modifying the similar test previously set forth in Bd. of Comm'rs on Grievances & Discipline Op. 90-20, 1990 Ohio Griev. Discip. LEXIS 5 (Aug. 17, 1990), which, according to Opinion 2005-3, "has served well, [but] the language of the Model Rule 4.2 comment 7 may provide more clarity to Ohio attorneys." Id. at *6.).

Comment [7] also addresses the issue of a current constituent who is represented in the matter "by his or her own counsel." In such circumstances, "the consent by that counsel will be sufficient for purposes of this rule." Ohio Rule 4.2 cmt. [7]. Presumably this applies to all current constituents. The comment, however, does not specifically address a former constituent known to be represented by his or her own counsel or by the organization's counsel. This would seem to be covered by the black letter rule of 4.2 -- such a former constituent is "a person" represented by counsel within the proscriptions of the Rule, and direct communication relating to the matter with that person would be prohibited. Conversely, if not represented, a former constituent is not within the Rule 4.2 no-contact rule, and, as expressly stated in Comment [7], "[c]onsent of the organization's lawyer is not required for communication with a former constituent." Rule 4.2 cmt. [7]. Accord, under the former OH DR 7-104(A)(1), Bd. of Comm'rs on Grievances & Discipline Op. 96-1, 1996 Ohio Griev. Discip. LEXIS 7 (Feb. 2, 1996), which opined that to the extent the former employee is not represented by counsel with respect to the matter, the lawyer still should be careful not to mislead the individual. Thus, the lawyer must (1) obtain the former employee's consent to the interview, (2) fully explain that the lawyer represents a client adverse to the corporation, (3) inform the former employee not to divulge any communications the former employee has had with counsel, and (4) refrain from giving the former employee legal advice, other than the advice to seek counsel. The conclusions reached in Opinion 96-1 with respect to former employees were reaffirmed by the Board in Op. 2005-3, 2005 Ohio Griev. Discip. LEXIS 3, which, among other things, expressly disapproved of blanket assertions by corporate counsel that all employees, former as well as current, were represented by counsel for the organization. (For a good summary of Opinion 2005-3 and the issues raised therein, see Philip Oliss, The "No Contact" Rule, Clev. B. J., July-Aug. 2005, at 42; see also Harry D. Cornett, Jr. & Tarig M. Naeem, Ex Parte Contact with Current and Former Employees of an Opposing Corporation, Clev. B.J., Oct. 2005, at 14.). While the steps set forth with respect to unrepresented former employees in Opinion 96-1 and reaffirmed in Opinion 2005-3 have not been expressly carried over into the new Rule, adherence to those steps probably remains the safer course under the new regime, particularly since those opinions have been cited with approval in the Ohio Code Comparison to Rule 4.2. (These matters are discussed in the context of Ohio Rule 4.2 in Thomas M. Horwitz, Ex Parte Communications with Adverse Organizations, Clev. Metro. B.J., May 2008, at 16.)

A related problem, not addressed by these Board opinions or by Rule 4.2, is determining when a corporation is to be considered as being represented by an attorney in a matter. If the organization has in-house counsel or attorneys on retainer, is the organization always represented on any matter that might arise? Or, does there need to be some internal recognition that a matter has arisen and counsel assigned to address it before the Rule's restrictions on ex parte communications arise? The ABA has taken the latter view in ABA Formal Op. 95-396 (July 28, 1995), which contains a comprehensive review of issues arising under Rule 4.2.

Assuming a violation of the Rule occurs, does this require the disqualification of offending counsel? This question was addressed in Smith v. Cleveland Clinic Found., 151 Ohio App.3d 373, 2003 Ohio 286, 784 N.E.2d 158 (Cuyahoga), where plaintiff's counsel interviewed defendant's current employees who were involved in the decision resulting in plaintiff's termination. The answer, according to the Eighth District Court of Appeals, was that violation of the rule should not result in disqualification of the offending counsel unless the violation prejudiced the employer, and in this case the court held that since "the record does not demonstrate the likelihood of prejudice, we conclude that the trial court erred" in disqualifying plaintiff's counsel. Id. at ¶ 12.

4.2:220 Communications "Authorized by Law" — Law Enforcement Activities

The Rule 4.2 prohibition against communication with a person known to be represented by counsel does not apply if the lawyer is authorized to do so "by law or a court order."

This exception to the anticontact rule comes into play in the criminal-law enforcement context, where case law indicates that prosecutors and/or their agents (including informants) are, prior to indictment, "authorized by law" to use accepted techniques in conducting criminal investigations and questioning of represented suspects not in custody, and need not go through the suspect's lawyer. (Cases reflecting varying degrees of approval of, or limitations on, application of this exception are collected in ABA Formal Op. 95-396 at 9-10 nn.23-29 (July 28, 1995).) There is no such authorization, however, after indictment or, arguably, if the suspect is in custody pre-indictment. See, e.g., United States v. Lopez, 4 F.3d 1455, 1461 (9th Cir. 1993).

The "authorized by law" exception is also available on the civil side, in government investigations of possible violation of civil law. See, e.g., 29 USC § 657(a)(2) (2000) (OSHA provision permitting Secretary of Labor representatives to inspect work places and "to question privately" employers or employees); ABA Informal Op. 83-1496 (Feb. 9, 1983) (government inspector/lawyer may conduct authorized inspection of regulated business without prior consent of lawyer for business). See generally Ernest F. Lidge III, Government Civil Investigations and the Ethical Bar on Communicating with Represented Parties, 67 Ind. L.J. 549, 569-86 (1992) (arguing for narrow interpretation of authorized-by-law exception).

This law-enforcement aspect of the authorized-by-law exception is now summarized in Ohio Rule 4.2 cmt. [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 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 governmental 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.

For a more detailed discussion of this aspect of the exception, see ABA, Annotated Model Rules of Professional Conduct 403-04 (6th ed. 2007) (commentary).

Finally, it should be noted that in 1989, U.S. Attorney General Thornburgh took the position that federal prosecutors "could not be sanctioned [under state ethics law] for contacts with a [represented] defendant 'in the course of authorized law enforcement activity.'" Laws. Man. on Prof. Conduct (ABA/BNA) § 71:308 (2004). The Department of Justice sought to codify this exemption, which purported to allow federal prosecutors to make ex parte contact with represented suspects before charge, arrest, or indictment, by regulations promulgated in 1994. The organized bar disputed the DOJ's power, under a general grant of regulatory authority, to do so (see ABA Formal Op. 95-396 at 23-24 (July 28, 1995) ("A general grant of regulatory authority to an agency is not sufficient to support the issuance of regulations that permit what other law forbids." The opinion does concede, however, that preindictment contact approved by existing precedent is "authorized by law," id. at 12)). The courts generally agreed. See id. at 9-10 nn. 23-29. The matter was resolved in 1998, when Congress enacted legislation confirming that federal attorneys are subject to state ethics rules. See 28 USC § 530B(a) (2000); see generally ABA, Annotated Model Rules of Professional Conduct 404-05 (6th ed. 2007) (commentary). Efforts to water down this legislation in the wake of 9/11/2001 were unsuccessful. Laws. Man. on Prof. Conduct (ABA/BNA) § 71:308 (2004).

4.2:230 Communications "Authorized by Law" — Other

Outside the law-enforcement arena, the authorized-by-law exception comes into play where a party invokes sunshine or other public information laws to obtain information directly from the government. See Ohio Rule 4.2 cmt. [5]. This was the result under the former OHCPR as well. See, e.g., Cincinnati Bar Ass'n Op. 90-91-01 (n.d.), where the bar association opined that a party in litigation with the government can obtain information available under the Ohio Public Records Act (ORC 149.43) without dealing with the government's lawyer; such conduct did not violate former OH DR 7-104. The same result presumably would follow with respect to a Freedom of Information Act request under federal law.

Another aspect of the "authorized-by-law" exception was explored in Bd. of Commr's on Grievances & Discipline Op. 92-7, 1992 Ohio Griev. Discip. LEXIS 14 (April 10, 1992). One of the questions presented was whether an attorney representing an interest adverse to a government board or commission could attend a public meeting of that board or commission and explain his client's position in the absence of the government's attorney being present. In opining that the lawyer could do so (after identifying himself or herself), the Board cited the public-meeting provision, ORC 121.22(C), which declares that public meetings "are open to the public at all times." The Board also quoted from former comment [1] of Model Rule 4.2, which stated that "[c]ommunications authorized by law include, for example, the right of a party to a controversy with a government agency to speak with government officials about the matter." (This sentence was deleted from comment [1] by the 2002 amendments and, as revised, its subject matter is now treated in the first sentence of MR 4.2 cmt. [5]. ABA Report to House of Delegates No. 401 (Feb. 2002), Model Rule 4.2, Reporter's Explanation of Changes. This revised language likewise constitutes the first sentence of Ohio Rule 4.2 cmt. [5]. See section 4.2:240.)

Other examples of permissible contact with a person known to be represented by counsel include:

  • service of process on defendant, see OH Civ R 4.1;

  • contact pursuant to court order or under the supervision of the court (e.g., deposition or trial interrogation of a represented nonclient witness); see Bd. of Comm'rs on Grievances & Discipline Op. 2006-5, 2006 Ohio Griev. Discip. LEXIS 3 (June 9, 2006).

  • ex parte contact with members of a certified class pursuant to court order after notice and hearing; contact with putative class members also permitted pre-certification; and

  • contact pursuant to a contractual provision specifying that notice is to go to a designated nonclient, even if that individual is known to be represented.

See generally 2 Restatement (Third) of the Law Governing Lawyers § 99 cmt. g (2000).

4.2:240 Communication with a Represented Government Agency or Officer

The material in this section is, in part, excerpted and adapted from Arthur F. Greenbaum, Lawyer's Guide to the Ohio Code of Professional Responsibility § 7.73 (1996).

Ex parte communications involving the government present a unique set of policy concerns. At least one commentator argues that, on the one hand, the government deserves the same protection from overreaching and same protection of the lawyer-client relationship as do private parties; on the other, the concept of openness in government and the fundamental right to petition the government for redress of grievances suggests that the ex parte communication ban should be drawn narrowly as applied to the government. Charles W. Wolfram, Modern Legal Ethics § 11.6.2, at 614-15 (1986).

Ohio Rule 4.2 deals with this aspect in the first sentence of Comment [5], which states as follows: "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." Rule 4.2 cmt. [5]. See 2 Geoffrey C. Hazard, Jr. & W. William Hodes, The Law of Lawyering § 38.8, at 38-16 (3d ed. 2003):

[A] lawyer for a private party who is in litigation with the government may seek ex parte interviews with relevant government officials. If the normal bar of Rule 4.2 were applied stringently, the government agency's lawyer could veto discussions between private parties and governmental officials, which is questionable policy, and might raise questions under the "petition for redress of grievances" clause of the First Amendment.

See also Camden v. Maryland, 910 F.Supp. 1115, 1118 n.8 (D. Md. 1996) ("Insofar as a party's right to speak with government officials about a controversy is concerned, Rule 4.2 has been uniformly interpreted as inapplicable.").

Most of the prior Ohio law on the represented-government-party subject was found in an extensive 1992 opinion of the BCGD, Bd. of Commr's on Grievances & Discipline Op. 92-7, 1992 Ohio Griev. Discip. LEXIS 14 (April 10, 1992), in which the Board attempted to set forth the accommodations in this area. The Board first opined that the former OH DR 7-104(A)(1) constraints on ex parte communication did apply to an attorney's communication with a government party represented by counsel. Special problems arose, however, in identifying who within the government should be considered as the party for purposes of the rule, and when the government should be considered as being represented on a particular matter.

As to the first point, the Board determined that for purposes of OH DR 7-104(A)(1), a government party was "an employee, public official or public body with authority to bind the government to settle a litigable matter, or whose act or omission gave rise to the matter." Op. 92-7, 1992 Ohio Griev. Discip. LEXIS 14, at *9. Any broader definition would inhibit the flow of information between the public and the government, and would too severely impede the process of gathering evidence by those opposing the government in litigation. See also Johnson v. Ohio Dep't of Youth Servs., 231 F. Supp.2d 690 (N.D. Ohio 2002) (citing Opinion 92-7 in concluding that former OH DR 7-104(A)(1) did not prohibit plaintiff's counsel's contact with retired Deputy Director of Finance and Planning of defendant even if he could be considered a current employee, because he did not have authority to bind the government or settle a matter and did not engage in conduct giving rise to the matter).

As to the second point, the Board recognized that technically the government might be seen as always being represented by counsel on every matter that has arisen or may arise affecting the government. The Board found this interpretation too broad, in light of the policies to be accommodated, and chose instead a more limited approach. For purposes of the former rule, the restriction on communication began "once government counsel has been brought into the matter." Op. 92-7, 1992 Ohio Griev. Discip. LEXIS 14, at *10.

Since it may be difficult for an outside lawyer to know whether government counsel has yet been engaged on the matter in question, the outside lawyer should identify himself and the purpose of the communication when dealing with persons within the government so that they might inform the outside counsel whether government counsel has been brought in. Upon being informed that counsel has been engaged, the outside lawyer will then "know" that the government is represented, and the ex parte communication restrictions will attach.

Once the restriction attaches, it works much like it would in the private setting. For example, it would be improper to send settlement offers or other communication directly to a government department or agency, even if the original is served on the government's attorney. Id. at *17.

Because of the need for openness in government, the Board also stated that a government department or agency or its counsel should not give blanket instructions to all of its employees not to communicate with counsel representing an adverse party unless the government's attorney is present. Id. at *14. The opinion does not clearly resolve whether advising government employees that they need not consent to such communications would be permissible. In addition, the Board opined that OH DR 7-104(A)(1) did not prohibit an attorney from speaking at a public meeting on behalf of an individual or a group of citizens, or on behalf of himself. That apparently fell within the "authorized by law" exception. The attorney should identify himself, however, especially if "the communication involves a disputed matter in which the attorney is appearing before a government party [who] has consulted with counsel regarding the matter." Op. 92-7, 1992 Ohio Griev. Discip. LEXIS 14, at *14.

The extent to which the guidelines set down in Opinion 92-7 survive under Rule 4.2 is unclear. This would appear to be one of those issues that will have to await interpretation by the Supreme Court as cases under Rule 4.2 arise.

4.2:250 Communication with a Confidential Agent of Nonclient

So far as we are aware, this subject is not dealt with in either the Ohio Rules or the Model Rules. It is touched upon in 2 Restatement (Third) of the Law Governing Lawyers § 102 cmt. d (2000). The Restatement comment states the rule of several decisions holding that

a lawyer representing a client in a matter may not communicate concerning the representation with a nonclient agent who the lawyer knows is likely to possess extensive and relevant confidential information of another nonclient interested in the matter that is confidential with respect to the lawyer's client. Those decisions typically involve a person — for example, an expert witness or paralegal assisting opposing counsel — whose employment has entailed exposure to extensive confidential information about the principal, who likely possesses little information that is not privileged, and whose role as confidential agent should have been apparent to the inquiring lawyer.

Id. Among the cases cited in the reporter's note to comment d is Am. Motors Corp. v. Huffstetler, 61 Ohio St.3d 343, 575 N.E.2d 116 (1991) (ex-employee/attorney enjoined from disclosing privileged information of former corporate employer to lawyers opposing former employer in product-liability litigation and offering himself as expert witness on behalf of plaintiffs in such litigation), but the thrust of the case is directed to the impropriety of the conduct of the "confidential [ex-]agent," not the lawyers to whom he sought to sell his wares. See also Paul v. Rawlings Sporting Goods Co., 123 F.R.D. 271 (S.D. Ohio 1988) (denying defendant-manufacturer's motion to disqualify plaintiff's expert witness based on status of witness as former agent/expert for defendant, where prior role related primarily to running tests on manufacturer's equipment, with discussion of specifics about case "secondary").