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Rule 4.2. Communicationwith Persons Represented by Legal Professionals.

(a) General Rule. Inrepresenting a client, a lawyer shall not communicate about the subject of therepresentation with a person the lawyer knows to be represented by a legal professional in the matter, unless the lawyer has the consent of the legalprofessional. Notwithstanding the foregoing, anattorney may, without such prior consent, communicate with another?s client ifauthorized to do so by any law, rule, or court order, in which event thecommunication shall be strictly restricted to that allowed by the law, rule, orcourt order, or as authorized by paragraphs (b), (c), (d) or (e) of this Rule.

(b) Rules Relating toUnbundling of Legal Services. A lawyer may consider a person whoserepresentation by alegal professional in a matter does not encompass allaspects of the matter to be unrepresented for purposes of this Rule and Rule4.3, unless that person?s legal professional has provided written notice to thelawyer of those aspects of the matter or the time limitation for which theperson is represented. Only as to such aspects and time is the personconsidered to be represented by a legal professional.

(c) Rules Relating toGovernment Lawyers Engaged in Civil or Criminal Law Enforcement. Agovernment lawyer engaged in a criminal or civil law enforcement matter, or aperson acting under the lawyer's direction in the matter, may communicate witha person known to be represented by a lawyer if:

(c)(1) the communication is in the courseof, and limited to, an investigation of a different matter unrelated to therepresentation or any ongoing, unlawful conduct; or

(c)(2) the communication is made to protect against an imminentrisk of death or serious bodily harm or substantial property damage that thegovernment lawyer reasonably believes may occur and the communication islimited to those matters necessary to protect against the imminent risk; or

(c)(3) the communication is made at thetime of the arrest of the represented person and after that person is advisedof the right to remain silent and the right to counsel and voluntarily andknowingly waives these rights; or

(c)(4) the communication is initiated bythe represented person, directly or through an intermediary, if prior to thecommunication the represented person has given a written or recorded voluntaryand informed waiver of counsel, including the right to have substitute counsel,for that communication.

(d) Organizations asRepresented Persons.

(d)(1) When the represented person is an organization, anindividual is represented by counsel for the organization if the individual isnot separately represented with respect to the subject matter of thecommunication, and

(d)(1)(A) with respect to a communication by a government lawyerin a civil or criminal law enforcement matter, is known by the governmentlawyer to be a current member of the control group of the representedorganization; or

(d)(1)(B) with respect to a communicationby a lawyer in any other matter, is known by the lawyer to be

(d)(1)(B)(i) acurrent member of the control group of the represented organization; or

(d)(1)(B)(ii) a representative of theorganization whose acts or omissions in the matter may be imputed to theorganization under applicable law; or

(d)(1)(B)(iii) a representative of theorganization whose statements under applicable rules of evidence would have theeffect of binding the organization with respect to proof of the matter.

(d)(2) The term " control group" means the followingpersons: (A) the chief executive officer, chief operating officer, chieffinancial officer, and the chief legal officer of the organization; and (B) tothe extent not encompassed by Subsection (A), the chair of the organization'sgoverning body, president, treasurer, secretary and a vice-president orvice-chair who is in charge of a principal business unit, division or function(such as sales, administration or finance) or performs a major policy-makingfunction for the organization; and (C) any other current employee or officialwho is known to be participating as a principal decision maker in thedetermination of the organization?s legal position in the matter.

(d)(3) This Rule does not apply to communications with governmentparties, employees or officials unless litigation about the subject of therepresentation is pending or imminent. Communications with elected officials onpolicy matters are permissible when litigation is pending or imminent afterdisclosure of the representation to the official.

(e) Limitations onCommunications. When communicating with a represented person pursuant tothis Rule, no lawyer may

(e)(1) inquire about privileged communications between the personand theirlegal professional or about information regardinglitigation strategy or legal arguments of their legal professional or seek toinduce the person to forgo representation or disregard the advice of the person?slegal professional; or

(e)(2) engage in negotiations of a pleaagreement, settlement, statutory or non-statutory immunity agreement or otherdisposition of actual or potential criminal charges or civil enforcement claimsor sentences or penalties with respect to the matter in which the person isrepresented by alegal professional unless such negotiations arepermitted by law, rule or court order.

Comment

[1] Rule 4.2 of the Utah Rules of Professional Conduct deviatessubstantially from ABA Model Rule 4.2 by the addition of paragraphs (b), (c),(d) and (e). Paragraphs (c), (d) and (e) are substantially the same as theformer Utah Rules 4.2(b), (c) and (d), adopted in 1999, as are most of thecorresponding comments that address these three paragraphs of this Rule. Thereis also a variation from the Model Rule in paragraph (a), where the body of judicially created rules are added as a source towhich the lawyer may look for general exceptions to the prohibition ofcommunication with persons represented by a legal professional. (Because ofthese major differences, the comments to this Rule do not correspondnumerically to the comments in ABA Model Rule 4.2.)

[2] This Rule contributes to the proper functioning of the legalsystem by protecting a person who has chosen to be represented by a legal professional in a matter against possible overreaching by other lawyerswho are participating in the matter, interference bythose lawyers with the client-legal professional relationship, and the uncounselled disclosureof information relating to the representation.

[3] This Rule applies to communications with any person who isrepresented by alegal professional concerning the matter to which thecommunication relates.

[4] This Rule applies even though the represented person initiatesor consents to the communication. A lawyer must immediately terminatecommunication with a person if, after commencing communication, the lawyerlearns that the person is one with whom communication is not permitted by thisRule.

[5] This Rule does not prohibit communication with a representedperson or an employee or agent of such a person where the subject of thecommunication is outside the scope of the representation. For example, theexistence of a controversy between a government agency and a private party,between two organizations, between individuals, or between an organization andan individual does not prohibit a lawyer for either from communicating with nonlawyer representatives of the other regarding a separatematter. Nor does the Rule prohibit government lawyers from communicating with arepresented person about a matter that does not pertain to the subject matterof the representation but is related to the investigation, undercover or overt,of ongoing unlawful conduct. Moreover, this Rule does not prohibit a lawyerfrom communicating with a person to determine if the person in fact isrepresented by a legal professional concerning the subject matter that thelawyer wishes to discuss with that person.

[6] This Rule does not preclude communication with a representedperson who is seeking a second opinion from a lawyer who is not otherwiserepresenting a client in the matter. A lawyer may not make a communicationprohibited by this Rule through the acts of another. See Rule 8.4(a). Partiesto a matter may communicate directly with each other, and a lawyer is notprohibited from advising a client concerning a communication that the client islegally entitled to make.

[7] A lawyer may communicate with a person who is known to berepresented by alegal professional in the matter to which thecommunication relates only if the communicating lawyer obtains the consent ofthe represented person's legal professional, or if thecommunication is otherwise permitted by paragraphs (a), (b) or (c). Paragraph(a) permits a lawyer to communicate with a person known to be represented by alegal professional in a matter without first securingthe consent of the represented person?s legal professional if the communicating lawyer is authorized to do so by law,rule or court order. Paragraph (b) recognizes that the scope of representationof a person by a legal professional may, underRule 1.2 of the Rules of Professional Conduct and the Rules Governing LicensedParalegal Practitioners, be limited by mutual agreement. Because a lawyerfor another party cannot know which of Rule 4.2 or4.3 applies under these circumstances, the legal professional who hasundertaken a limited representation must assume the responsibility forinforming another party?s lawyer of the limitations. This ensures that such alimited representation will not improperly or unfairly induce an adversary?slawyer to avoid contacting the person on those aspects of a matter for whichthe person is not represented by a legal professional. Note that thisresponsibility on the legal professional undertaking limited-scoperepresentation also relates to the ability of another party?s lawyer to makecertain ex parte contacts without violating Rule 4.3. Utah Rule ofProfessional Conduct 4.2(b) and related sections of this Comment are part ofthe additions to the ABA Model Rules clarifying that a lawyer may undertakelimited representation of a client under the provisions of Rule 1.2. Paragraph(c) specifies the circumstances in which government lawyers engaged in criminaland civil law enforcement matters may communicate with persons known to berepresented by a lawyer in such matters without first securing consent of thatlawyer.

[8] A communication with a represented person is authorized byparagraph (a) if permitted by law, rule or court order. This recognizesconstitutional and statutory authority as well as the well-established role ofthe state judiciary in regulating the practice of the legal profession. Directcommunications are also permitted if they are made pursuant to discoveryprocedures or judicial or administrative process in accordance with the ordersor rules of the court or other tribunal before which a matter is pending.

[9] A communication is authorized under paragraph (a) if thelawyer is assisting the client to exercise a constitutional right to petitionthe government for redress of grievances in a policy dispute with thegovernment and if the lawyer notifies the government's lawyer in advance of theintended communication. This would include, for example, a communication by alawyer with a governmental official with authority to take or recommend actionin the matter, provided that the sole purpose of the lawyer?s communication isto address a policy issue, including the possibility of resolving adisagreement about a policy position taken by the government. If, on the otherhand, the matter does not relate solely to a policy issue, the communicatinglawyer must comply with this Rule.

[10] In the event the person with whom the lawyer communicates isnot known to be represented by a legalprofessional in the matter, the lawyer?scommunication is subject to Rule 4.3.

[11] Paragraph (c) of this Rule makes clear that this Rule doesnot prohibit all communications with represented persons by state or federalgovernment lawyers (including law enforcement agents and cooperating witnessesacting at their direction) when the communications occur during the course ofcivil or criminal law enforcement. The exemptions for government lawyerscontained in paragraph (c) of this Rule recognize the unique responsibilitiesof government lawyers to enforce public law. Nevertheless, where the lawyer isrepresenting the government in any other role or litigation (such as a contractor tort claim, for example) the same rules apply to government lawyers as areapplicable to lawyers for private parties.

[12] A "civil law enforcement proceeding" means a civilaction or proceeding before any court or other tribunal brought by thegovernmental agency that seeks to engage in the communication under relevantstatutory or regulatory provisions, or under the government's police orregulatory powers to enforce the law. Civil law enforcement proceedings do notinclude proceedings related to the enforcement of an administrative subpoena orsummons or a civil investigative demand; nor do they include enforcementactions brought by an agency other than the one that seeks to make thecommunication.

[13] Under paragraph (c) of this Rule, communications arepermitted in a number of circumstances. For instance, subparagraph (c)(1) permits the investigation of a different matterunrelated to the representation or any ongoing unlawful conduct. (Unlawfulconduct involves criminal activity and conduct subject to a civil lawenforcement proceeding.) Such violations include, but are not limited to,conduct that is intended to evade the administration of justice including inthe proceeding in which the represented person is a defendant, such asobstruction of justice, subornation of perjury, jury tampering, murder,assault, or intimidation of witnesses, bail jumping, or unlawful flight toavoid prosecution. Also, permitted are undercover activities directed atongoing criminal activity, even if it is related to past criminal activity forwhich the person is represented by counsel.

[14] Under subparagraph (c)(2), agovernment lawyer may engage in limited communications to protect against animminent risk of serious bodily harm or substantial property damage. Theimminence and gravity of the risk will be determined from the totality of the circumstances.Generally, a risk would be imminent if it is likely to occur before thegovernment lawyer could obtain court approval or take other reasonablemeasures. An imminent risk of substantial property damage might exist if thereis a bomb threat directed at a public building. The Rule also makes clear thata government attorney may communicate directly with a represented party at thetime of arrest of the represented party without the consent of the party?scounsel, provided that the represented party has been fully informed of his orher constitutional rights at that time and has waived them. A government lawyermust be very careful to follow Rule 4.2(d) and would have a significant burdento establish that the waiver of right to counsel was knowingand voluntary. The better practice would include a written or recorded waiver.Nothing in this Rule, however, prevents law enforcement officers, even ifacting under the general supervision of a government lawyer, from questioning arepresented person. The actions of the officers will not be imputed to thegovernment lawyer unless the conversation has been "scripted" by the government lawyer.

[15] If government lawyers have any concerns about theapplicability of any of the provisions of paragraph (c) or are confronted withother situations in which communications with represented persons may bewarranted, they may seek court approval for the ex parte communication.

[16] Any lawyer desiring to engage in a communication with arepresented person that is not otherwise permitted under this Rule must applyin good faith to a court of competent jurisdiction, either ex parte orupon notice, for an order authorizing the communication. This means, dependingon the context: (1) a district judge or magistrate judge of a United StatesDistrict Court; (2) a judge or commissioner of a court of general jurisdictionof a state having jurisdiction over the matter to which the communicationrelates; or (3) a military judge.

[17] In determining whether a communication is appropriate alawyer may want to consider factors such as: (1) whether the communication withthe represented person is intended to gain information that is relevant to thematter for which the communication is sought; (2) whether the communication isunreasonable or oppressive; (3) whether the purpose of the communication is notprimarily to harass the represented person; and (4) whether good cause existsfor not requesting the consent of the person?s legal professional prior to thecommunication. The lawyer should consider requesting the court to make awritten record of the application, including the grounds for the application,the scope of the authorized communications, and the action of the judicialofficer, absent exigent circumstances.

[18] Organizational clients are entitled to the protections ofthis Rule. Paragraph (d) specifies which individuals will be deemed forpurposes of this Rule to be represented by the lawyer who is representing theorganization in a matter. Included within the control group of anorganizational client, for example, would be the designated high levelofficials identified in subparagraph(d)(2). Whether anofficer performs a major policy function is to be determined by reference tothe organization's business as a whole. Therefore, a vice-president who haspolicy making functions in connection with only a unit or division would not bea major policy maker for that reason alone, unless that unit or divisionrepresents a substantial part of the organization's total business. A staff memberwho gives advice on policy but does not have authority, alone or in combinationwith others, to make policy does not perform a major policy making function.

[19] Also included in the control group are other currentemployees known to be "participating as principal decision makers" inthe determination of the organization?s legal position in the proceeding orinvestigation of the matter. In this context, "employee" could alsoencompass former employees who return to the company's payroll or are specificallyretained for compensation by the organization to participate as principaldecision makers for a particular matter. In general, however, a lawyer may,consistent with this Rule, interview a former employee of an organizationwithout consent of the organization?s lawyer.

[20] In a criminal or civil law enforcement matter involving arepresented organization, government lawyers may, without consent of theorganization?s lawyer, communicate with any officer, employee, or director ofthe organization who is not a member of the control group. In all other mattersinvolving organizational clients, however, the protection of this Rule isextended to two additional groups of individuals: individuals whose acts mightbe imputed to the organization for the purpose of subjecting the organizationto civil or criminal liability and individuals whose statements might bebinding upon the organization. A lawyer permitted by this Rule to communicatewith an officer, employee, or director of an organization must abide by thelimitations set forth in paragraph (e).

[21] This Rule does prohibit communications with any person who isknown by the lawyer making the communication to be represented by a legal professional in the matter to which the communication relates. A personis "known" to be represented when the lawyer has actual knowledge ofthe representation. Knowledge is a question of fact to be resolved by referenceto the totality of the circumstances, including reference to any written noticeof the representation. See Rule 1.0(f). Written notice to a lawyer is relevant,but not conclusive, on the issue of knowledge. Lawyers should ensure thatwritten notice of representation is distributed to all attorneys working on amatter.

[22] Paragraph (e) is intended to regulate a lawyer'scommunications with a represented person, which might otherwise be permittedunder the Rule, by prohibiting any lawyer from taking unfair advantage of theabsence of the represented person?s legalprofessional. The prohibition contained in paragraph(e) is limited to inquiries concerning privileged communications and lawfuldefense strategies. The Rule does not prohibit inquiry into unlawful litigationstrategies or communications involving, for example, perjury or obstruction ofjustice.

[23] The prohibition of paragraph (e) against the communicatinglawyer?s negotiating with the represented person with respect to certain issuesdoes not apply if negotiations are authorized by law, rule or court order. Forexample, a court of competent jurisdiction could authorize a lawyer to engagein direct negotiations with a represented person. Government lawyers may engagein such negotiations if a represented person who has been arrested, charged ina criminal case, or named as a defendant in a civil law enforcement proceedinginitiates communications with the government lawyer and the communication isotherwise consistent with requirement of subparagraph (c)(4).

 

 

Effective May 1, 2019