ABSOLUTELY NO-CONTACT! – but really? Attorney communications with an adversary’s in-house counsel

Model Rule 4.2 and state analogs provide the well-known “no-contact” rule: “…a lawyer shall not communicate … with a person the lawyer knows to be represented by another lawyer…” but what about the adverse party’s in-house counsel.?

Comment [7] notes “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…” Interestingly, Rule 4.2 in CA and NM specifically address represented corporations. “The (Arizona analog) rule’s purposes are to prevent opposing counsel from overreaching, from interfering in other lawyers’ relationships with their clients,?and from acquiring protected information through what has been described as ‘uncounselled disclosure.’”* Ethics opinions are opening the door on direct communications between attorneys and in-house counsel, even when represented by outside counsel. See ABA Formal Opinion 06-443, NYC Bar Formal Opinion 2007-01, VA Ethics Opinion 1890, NYSBA Ethics Opinion 1047 (not directly on point but adjacent), etc.

Check your local rules but while probably allowed, I’d still go through outside counsel to start – it is the safer course of action but really, I think more as a matter of professional courtesy.?Presumably if you're breaking 'no-contact' to speak directly to the in-house attorney, you're trying to shortcut negotiations, you probably will be better served by doing that without offending anyone's professional sensibilities.

* The No-Contact Rule Revisited, Eye on Ethics, by David Dodge