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Rule 4-4.2 Communication with Person Represented by Counsel
(a) In representing a client, a lawyer shall not communicate about the subject of
the representation with a person the lawyer knows to be represented by another
lawyer in the matter, unless the lawyer has the consent of the other lawyer.
Notwithstanding the foregoing, an attorney may, without such prior consent,
communicate with another's client in order to meet the requirements of any
statute or contract requiring notice or service of process directly on an
adverse party, in which event the communication shall be strictly restricted to
that required by statute or contract, and a copy shall be provided to the
adverse party's attorney.
(b) An otherwise unrepresented person to whom limited representation
is being provided or has been provided in accordance with Rule Regulating The
Florida Bar 4-1.2 is considered to be unrepresented for purposes of this rule
unless the opposing lawyer knows of, or has been provided with, a written notice
of appearance under which, or a written notice of time period during which, the
opposing lawyer is to communicate with the limited representation lawyer as to
the subject matter within the limited scope of the representation.
COMMENT
This rule contributes to the proper functioning of the
legal system by protecting a person who has chosen to be represented by a lawyer
in a matter against possible overreaching by other lawyers who are participating
in the matter, interference by those lawyers with the client-lawyer
relationship, and the uncounseled disclosure of information relating to the
representation.
This rule applies to communications with any person who is
represented by counsel concerning the matter to which the communication relates.
The rule applies even though the represented person initiates
or consents to the communication. A lawyer must immediately terminate
communication with a person if, after commencing communication, the lawyer
learns that the person is one with whom communication is not permitted by this
rule.
This rule does not prohibit communication with a represented
person, or an employee or agent of such a person, concerning matters outside the
representation. For example, the existence of a controversy between a government
agency and a private party, or between 2 organizations, does not prohibit a
lawyer for either from communicating with nonlawyer representatives of the other
regarding a separate matter. Nor does this rule preclude communication with a
represented person who is seeking advice from a lawyer who is not otherwise
representing a client in the matter. A lawyer may not make a communication
prohibited by this rule through the acts of another. See rule 4-8.4(a). Parties
to a matter may communicate directly with each other, and a lawyer is not
prohibited from advising a client concerning a communication that the client is
legally entitled to make, provided that the client is not used to indirectly
violate the Rules of Professional Conduct. Also, a lawyer having independent
justification for communicating with the other party is permitted to do so.
Permitted communications include, for example, the right of a party to a
controversy with a government agency to speak with government officials about
the matter.
In the case of a represented organization, this rule
prohibits communications with a constituent of the organization who supervises,
directs, or regularly consults with the organization's lawyer concerning the
matter or has authority to obligate the organization with respect to the matter
or whose act or omission in connection with the matter may be imputed to the
organization for purposes of civil or criminal liability. Consent of the
organization's lawyer is not required for communication with a former
constituent. If a constituent of the organization is represented in the matter
by the agent's or employee's own counsel, the consent by that counsel to a
communication will be sufficient for purposes of this rule. Compare rule
4-3.4(f). In communication with a current or former constituent of an
organization, a lawyer must not use methods of obtaining evidence that violate
the legal rights of the organization. See rule 4-4.4.
The prohibition on communications with a represented person
only applies in circumstances where the lawyer knows that the person is in fact
represented in the matter to be discussed. This means that the lawyer has actual
knowledge of the fact of the representation; but such actual knowledge may be
inferred from the circumstances. See terminology. Thus, the lawyer cannot evade
the requirement of obtaining the consent of counsel by closing eyes to the
obvious.
In the event the person with whom the lawyer communicates
is not known to be represented by counsel in the matter, the lawyer's
communications are subject to rule 4-4.3.
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