The Anticontact Rule Gets a Facelift
By Alice Neece Moseley
Editor's Note: Ms. Moseley co-authored, with Fred H. Moody, Jr. and John H. Vernon, III, "An Overview of the Revised North Carolina Rules of Professional Conduct: An Examination of the Interests Promoted and Subordinated," Wake Forest Law Review, Vol. 32, No. 3, (Sept. 1996). This article includes excerpts from that law review article.
The ethical prohibition on knowingly communicating with a person about the subject matter of the representation without the consent of the represented person's lawyer has appeared in lawyer codes from the early days of lawyer regulation. As noted by the ABA Committee on Ethics and Professional Responsibility, every ethical code put forth by the ABA since 1908 has included such a provision. 1 The same can be said of the ethical codes promulgated by the North Carolina State Bar over the years. North Carolina Canons of Ethics, adopted in the State Bar's inaugural year, 1933, contains the following provision in Canon 9:
A lawyer should not in any way communicate upon the subject or controversy with a party represented by counsel; much less should he undertake to negotiate or compromise the matter with him, but should deal only with his counsel. 2
The North Carolina Code of Professional Responsibility, which supplanted the Canons in 1973, provides in DR7-104(A)(1) that
During the course of his representation of a client a lawyer shall not. . . [c]ommunicate or cause another to communicate on the subject of the representation with a party he knows to be represented by a lawyer in that matter unless he has the prior consent of the lawyer representing such other party or is authorized by law to do so. 3
When the Code was superseded by the Rules of Professional Conduct in 1985, the prohibition was continued, in virtually the same words as DR7-104(A)(1), in Rule 7.4, "Communicating with One of Adverse Interest." 4
The purpose of such rules, which are often referred to as the "anti-contact" or "non contact" rules, 5 is to prevent a lawyer from taking advantage of a represented person. 6 The ABA Committee on Ethics and Professional Responsibility, in Formal Opinion 95-396, 7 describes this purpose as follows:
. the anti-contact rules provide protection of the represented person against overreaching by adverse counsel, safeguard the client-lawyer relationship from interference by adverse counsel, and reduce the likelihood that clients will disclose privileged or other information that might harm their interests.
The recently adopted North Carolina Revised Rules of Professional Conduct 8 also contain, at Revised Rule 4.2(a), the historical prohibition against unauthorized communications with a person known to be represented by a lawyer in a particular matter. However, the rule has undergone a "facelift": a word replacement removes an ugly bump in the interpretation of the rule and some "fleshing-out" of the parameters of the prohibition will simplify the application of the rule in two specific situations.
Revised Rule 4.2(a) departs from the language of its predecessor rules with the substitution of the word "person" for the word "party." Repealed North Carolina Rule 7.4(1) states that ". . .a lawyer shall not communicate or cause another to communicate about the subject of the representation with a party the lawyer knows to be represented by another lawyer in the matter unless the lawyer has the consent of the other lawyer or is authorized by law to do so. . . ." Imitating ABA Model Rule 4.2, 9 Revised Rule 4.2(a) reads: ". . .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 or is authorized by law to do so." Although the revision appears to expand the protection afforded to the client-lawyer relationship beyond parties to litigation, whether the revision changes the application of the rule is debatable. The comment to repealed Rule 7.4 explained that the rule "covers any person, whether or not a party to a formal proceeding, who is represented by counsel concerning the matter in question." Moreover, RPC 87, 10 a 1990 formal opinion of the North Carolina State Bar, concludes that the comment to repealed Rule 7.4(1), extending the prohibition on contact to a represented person, correctly explains the rule even though the wording of the rule itself is contrary. Moreover, the opinion observes that the statement in the comment is not merely "an aspirational standard":
As a matter of policy, Rule 7.4(a) was designed to reduce the risk that an attorney/client relationship in regard to a particular matter might be subverted by the importunings of counsel representing other persons or entities whose interests in the same matter might be adverse. The attorney/client relationship enjoyed by a potential witness and his or her counsel is no less worthy of protection than that enjoyed by any named party and his or her lawyer.
Despite RPC 87 and the comment to repealed Rule 7.4, the substitution of "represented person" for "represented party" was one of the more controversial revisions proposed by the drafters 11 of the Revised Rules. When the Revised Rules were published by the State Bar for comment in September 1996, the United States Attorneys for the Western, Middle, and Eastern Districts of North Carolina sent a joint letter to the committee urging the committee "to ensure that traditional accepted [criminal] investigative practices not be drawn into question by the proposed amendments, and that the amendments not create the likely but unintended consequence of barring attorneys from supervising undercover operations." 12 Similar objections were expressed by the Attorney General of North Carolina. 13 These objections did not convince the drafters of the Revised Rules to change their recommendation. However, the exception in the rule for "communications authorized by law" presumably includes pre-indictment, non-custodial investigative activities of government lawyers which are recognized by the courts as constitutionally permissible. 14 Nevertheless, to the extent that the prohibition on communications in Revised Rule 4.2(a) impinges upon the discretion of prosecutors to direct criminal investigations of represented persons, the rule clearly elevates the protection of the client-lawyer relationship over the public interest in rooting out crime.
Although the first sentence of Revised Rule 4.2(a) is identical to ABA Model Rule 4.2, the comparison stops there. The remainder of the North Carolina rule contains significant departures from the Model Rule and from repealed North Carolina Rule 7.4. First, paragraph (a) of Revised Rule 4.2(a) explicitly permits a lawyer to encourage a client to communicate with the opposing party "in a good faith attempt to resolve the controversy." This statement reverses RPC 119, 15 a 1991 ethics opinion of the State Bar that prohibits a lawyer from acting as the catalyst for a client's communication with the opposing party regardless of the purpose of the communication. While RPC 119 serves the salutary purpose of discouraging a lawyer from doing indirectly that which the lawyer is prohibited from doing directly, it also discourages legitimate, good faith attempts to resolve a controversy without the intervention of lawyers. Moreover, parties to a controversy have always been allowed to speak to each other without the consent of their lawyers. This unique provision of Revised Rule 4.2 should encourage informal attempts at settlement and thereby promote more efficient and less expensive resolutions of disputes.
There is another unique provision in Revised Rule 4.2. Model Rule 4.2 and repealed North Carolina Rule 7.4(1) permit communications "authorized by law." The comments to both the Model Rule and the repealed rule imply that communications with government officials fall within this exemption because of the First Amendment right to petition. 16 Neither rule, however, specifically addresses communications with an elected government official when the official, or the government body upon which he or she sits, is represented in a matter. Revised Rule 4.2(b) establishes a procedure for communications with represented elected officials. The drafters of the Revised Rules developed this procedure, without reference to the Model Rule or caselaw, to protect the right to petition elected officials without unduly interfering with the client-lawyer relationship between a government official and the government's legal counsel. 17 The procedure mimics the limitations on ex parte communications with judges set forth in repealed Rule 7.10(b) and Revised Rule 3.5(a)(3). 18 Revised Rule 4.2(b) permits communications with a represented elected official for a government body under the following circumstances: (1) in writing, if copied to the opposing lawyer; (2) orally, upon adequate notice to the opposing counsel; or (3) in the course of official proceedings.
The changes to the traditional "anti-contact rule" that are incorporated in Revised Rule 4.2 advance the interests of clients by clarifying that any person who has chosen to be represented by a lawyer in a particular matter is protected from direct communications by the opposing lawyer regardless of whether the person is a party or a witness, and regardless of whether the person is represented in litigation or a non-litigation legal matter. The Revised Rule will also foster good faith direct communications between the client and the opposing party for the purpose of resolving the controversy without lawyers. Finally, the unique procedure permitting limited communications with elected officials may facilitate the search for political solutions to our clients' problems. It is hoped that the facelift of Revised Rule 4.2 will revitalize the historic purpose of anti-contact rules.
1. ABA Comm. on Ethics and Professional Responsibility, Formal Op. 95-396 (1995), ABA/BNA Lawyers' Manual on Professional Conduct , Ethics Opinions, at 1001:292 [hereinafter ABA Formal Op. 95-396].
2. The North Carolina State Bar Statutes, Rules and Regulations, Canons of Ethics and Opinions, Including Rules of the Board of Law Examiners (Robert A. Melott, ed., 1970), Part VI, at 9-1.
3. N.C. Code of Professional Responsibility DR7-104(A)(1) (1981) (repealed 1985) [hereinafter Repealed N.C. Code].
4. N.C. Rules of Professional Conduct Rule (1995) (repealed 1997) [hereinafter Repealed N.C. Rules].
5. See, e.g. , Annotated Model Rules of Professional Conduct (1995), at 392.
6. Cf. , EC7-18 of Repealed N.C. Code, supra note 3: "The legal system in its broadest sense functions best when persons in need of legal advice or assistance are represented by their own counsel."
7. ABA Formal Op. 95-396, supra note 1, at 1001:293.
8. N.C. Revised Rules of Professional Conduct (1997) [hereinafter N.C. Revised Rules].
9. Model Rules of Professional Conduct (1995). At the August 8, 1995, meeting of the ABA House of Delegates, Model Rule 4.2 was amended to substitute the word "person" for the word "party" upon the recommendation of the ABA Standing Committee on Ethics and Professional Responsibility. The August 1995 report to the ABA House of Delegates from the ABA Standing Committee explained the committee's recommendation as follows: ". . .it seems clear. . .that the appropriate operative term is 'person,' and not 'party,' for neither the need to protect uncounselled persons against being taken advantage of by opposing counsel nor the importance of preserving the client-attorney relationship is limited to those circumstances where the represented person is a party to an adjudicative or other formal proceeding." ABA Standing Comm. on Ethics and Professional Responsibility, Report with Recommendation to the House of Delegates, at 15 (Aug. 1995).
10. N.C. State Bar, RPC 87 (1990).
11. The Revised Rules were proposed by a special committee of the North Carolina State Bar, the Committee to Review the Rules of Professional Conduct. During its existence from December 1992 through April 1997, the committee was called by various other names but ultimately was given the nickname, "The Rewrite Committee." The committee consisted of councilors of the N.C. State Bar and three lawyers from the general membership of the N.C. State Bar. The following lawyers were members of the committee at some time during its existence: Fred H. Moody, Jr. and John H. Vernon, III (co-chairs 1994-1997), H. Gerald Beaver, James P. Erwin, John B. McMillan, Mark W. Owens, Jr., E. Fitzgerald Parnell, Ann M. Reed, Cressie H. Thigpen, Jr., Mona Lisa Wallace, and Alex Warlick, Jr.
12. Letter from Mark T. Calloway, U.S. Attorney for the Western District of North Carolina, Janice McKenzie Cole, U.S. Attorney for the Eastern District of North Carolina, Walter C. Holton, Jr., U.S. Attorney for the Middle District of North Carolina, to Alice Neece Moseley, Assistant Executive Director of the N.C. State Bar (October 11, 1996) (on file with the author).
13. Letter from Michael F. Easley, N.C. Attorney General, to Alice Neece Moseley, Assistant Executive Director of the N.C. State Bar (October 4, 1996) (on file with the author).
14. ABA Standing Comm. on Ethics and Professional Responsibility, Report with Recommendation to the House of Delegates, at 11-14 (Aug. 1995). Unfortunately, the comment to Revised Rule 4.2 does not contain Paragraph  of the comment to ABA Model Rule 4.2 which explains the exception for communications authorized by law as it applies to criminal investigations:
Communications authorized by law also include 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 there is applicable judicial precedent that either has found the activity permissible under this Rule or has found this Rule inapplicable. However, the Rule imposes ethical restrictions that go beyond those imposed by constitutional provisions.
Model Rules of Professional Conduct, Rule 4.2 cmt. 2.
15. N.C. State Bar, RPC 119 (1991).
16. "Communications 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." Repealed N.C. Rules Rule 7.4 cmt.2.
17. Executive Summary of the Report of the Committee to Review the Rules of Professional Conduct , in Materials for the North Carolina Supreme Court on the Proposed Revised Rules of Professional Conduct (April 4, 1997) at11.
18. Repealed N.C. Rules Rule 7.10(b) and N.C. Revised Rules Rule 3.5(a)(3). Both rules permit ex parte communications with a judge or other official in the following circumstances: (1) in the course of official proceedings; (2) in writing, if a copy of the writing is furnished to the opposing party; (3) orally, upon adequate notice to the opposing party; and (4) as otherwise permitted by law.
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