Submitted by Douglas J. Brocker

This article is the first in a series concerning the most recent revisions to the Rules of Professional Conduct, which took effect on March 1, 2003. In the series of articles, the author(s) will discuss the practical implications of the more significant changes to the Rules of Professional Conduct.

The most contested change to the recently revised Rules of Professional Conduct concerned Rule 4.2 and its corresponding comments. Rule 4.2 prohibits lawyers from communicating with a person the lawyer knows to be represented by another attorney. The language of the rule itself remains unchanged. However, revisions to the comment concerning communications with members of a represented organization generated considerable debate. Revisions to this comment made three potentially significant changes and retained a significant provision slated for deletion by the Bar.

First, a previous comment to Rule 4.2 prohibited communication by an opposing lawyer with “persons having managerial responsibility on behalf of the organization.” Superseded Comment [5] to Rule 4.2. In contrast, the corresponding revised comment “prohibits communications with a constituent of the organization who supervises, directs or consults with the organization’s lawyer concerning the matter.” Revised Comment [9] to Rule 4.2. The category of individuals covered by this revised comment appears to be a much smaller, focused group of individuals than referred to in the previous comment. Under Revised Comment 9, it appears that an opposing lawyer is only prohibited from communicating with those persons who are directly involved in the representation on the particular matter at issue, not all managers within the organization.

Second, the previous comment prohibited an opposing lawyer from communicating “with any person whose act or omission in connection with the matter may be imputed to the organization for purposes of civil or criminal liability or whose statement may constitute an admission on the part of the organization.” Superseded Comment [5] to Rule 4.2 (emphasis added). Revised Comment 9 to Rule 4.2 deletes entirely the emphasized language “or whose statement may constitute an admission on the part of the organization.” This omission is potentially significant because courts in many states had interpreted this language, along with Rule 801(d) of the Rules of Evidence, to prohibit an opposing lawyer from directly contacting even “rank and file” employees of an organization whose statements regarding the matters at issue could constitute an admission. See, e.g., McCallum v. CSX Transp., Inc., 149 F.R.D. 104, 109-112 (M.D.N.C. 1993). Rule 801(d) creates an exception to hearsay statements for admissions of a party opponent, including a statement by the party’s agent or servant concerning a matter within the scope of his agency or employment made during the existence of their relationship. N.C.R. Evid. 801(d)(D).

One interpretation of this change in Comment 9 to Rule 4.2 is that it merely eliminates a redundancy and does not intend to alter the substance of the comment. However, opposing lawyers who are aware of this change and want to interview rank and file employees of the organization are certain to argue that this revision in Comment 9 allows communication with a broader range of a represented organization’s employees.

Third, under the previous comment, there was no mention of whether an opposing lawyer could contact previous employees of a represented organization. Revised Comment 9 specifically provides: “Consent of the organization’s lawyer is not required for communication with a former constituent unless the former constituent participated substantially in the legal representation of the organization in the matter.” Therefore, Revised Comment 9 makes it clear that an opposing lawyer can communicate directly with a former constituent of a represented organization, unless the former constituent was directly involved in the legal representation. This revision to Comment 9 is consistent with State Bar’s prior ethics opinions in this regard. See 97 F.E.O. 2.

Additionally, at the request of the U.S. Department of Justice, the North Carolina Supreme Court reinserted a sentence in the revised comment that the State Bar had proposed be eliminated from the previous comment. This sentence in Comment 9 provides: “If an employee or agent of the organization is represented in the matter by his or her own counsel, the consent by that counsel to communication would be sufficient for purposes of this rule.” The decision to retain this sentence will continue to allow an opposing attorney to talk with any current employee or agent of the organization as long as his or her own attorney consents to the communication. It does not require obtaining the consent of the organization’s counsel to do so.

Arguably, the net effect of these changes is to allow an opposing attorney greater access to the current or former constituents of a represented organization than was provided for in the previous comments to Rule 4.2. Notwithstanding, Comment 9 continues to caution opposing lawyers that they still must not use methods that violate the organization’s legal rights in contacting such employees or constituents, which includes not obtaining any information regarding privileged communications with the organization’s lawyer. For those lawyers who regularly represent corporations in contested matters, these changes may be significant, even though they are tucked away in the comments rather than included in Rule 4.2 itself.