When can you speak to your business partners or adversary’s officers and employees? How can you protect your co-workers from being questioned by another company’s lawyers – or by a plaintiff’s lawyer? You probably deal with these issues regularly, but may not remember the “rules.” This seminar will help you remember – or learn – the limits on lawyer communications with non-lawyers. Bring your cell phone to this interactive discussion where we’ll cover the anti-contact rule (Missouri Rule 4-4.2), obligations to be truthful to third parties (Rules 4-4.1 and 4-8.4), avoiding interference with informal discovery (Rule 4-3.4) and the ethical limits on threatening criminal prosecution and other adverse consequences (Rule 4-8).

1. Drop the Phone and Drive:
Limits on Lawyer Communications with Non-
Lawyers
November 12, 2014
Michael Downey
© 2014 Armstrong Teasdale
LLP
© 2014 2013 Armstrong Teasdale
LLP

2. Anti-Contact Issues
 Can you speak to another lawyer’s client?
 Can another lawyer speak to your client without your
participation?
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LLP
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3. The Accident #1
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LLP
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Joe
W1
W2
W3
Joe's Trucking
Plaintiff

4. Tom Cruise visits Oprah Show
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LLP
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5. "Represented Persons" – Rule 4-4.2
 "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 or is authorized to do
so by law or a court order."
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LLP
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6. Elements of Anti-Contact Rule
 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
• Lawyer has the consent of the other lawyer or
• Authorized by law or a court order.
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LLP
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7. The Accident #1
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LLP
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Joe
W1
W2
W3
Joe's Trucking
Plaintiff

8. Unrepresented Persons (Witnesses) – Rule
4-4.3
 No (falsely) implying disinterested.
• In dealing on behalf of a client with a person who is not
represented by counsel, a lawyer shall not state or imply
that the lawyer is disinterested.
 Must clarify role when misunderstood.
• When the lawyer knows or reasonably should know that
the unrepresented person misunderstands the lawyer's role
in the matter, the lawyer shall make reasonable efforts to
correct the misunderstanding.
 No giving legal advice if conflicting interests.
• The lawyer shall not give legal advice to an unrepresented
person, other than the advice to secure counsel, if the
lawyer knows or reasonably should know that the interests
of such a person are or have a reasonable possibility of
being in conflict with the interests of the client.
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LLP
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9. Duty of Candor – Rule 4-4.1
 In the course of representing a client a lawyer shall
not knowingly:
a) make a false statement of material fact or law to
a third person; or
b) fail to disclose a material fact to a third person when
disclosure is necessary to avoid assisting a criminal
or fraudulent act by a client, unless disclosure is
prohibited by Rule 1.6.
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LLP
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10. No Fraud or Misrepresentations –
Rule 4-8.4(c)
 It is professional misconduct for a lawyer to:
a) violate or attempt to violate the Rules of Professional
Conduct, knowingly assist or induce another to do
so, or do so through the acts of another;
b) commit a criminal act that reflects adversely on the
lawyer's honesty, trustworthiness or fitness as a
lawyer in other respects;
c) engage in conduct involving dishonesty, fraud,
deceit or misrepresentation; . . . .
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LLP
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11. The Accident #2 – Corporate Context
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LLP
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W1
TD
W2
W3
Nationwide
Trucking Co.
NTC
Driver
Plaintiff

12. Corporate Employees (Constituents)
 [7] 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.
Model Rule 4-4.2 cmt.
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LLP
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13. Contacts with NTC Driver?
 If the organization is represented, then anti-contact
rule covers
• Constituent of the organization "who supervises,
directs, or regularly consults with the organization's
lawyer concerning the matter"
• Constituent who have "authority to obligate the
organization with respect to the matter"
• Constituent "whose act or omission in connection
with the matter may be imputed to the organization
for purposes of civil or criminal liability
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LLP
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14. The Accident #2 – Corporate Context
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LLP
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W1
TD
W2
W3
Nationwide
Trucking Co.
NTC
Driver
Plaintiff

15. The Accident #3 – NTC Witnesses
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LLP
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NTC
CEO
TD
NTC
EE
W3
Nationwide
Trucking Co.
NTC
Driver
Plaintiff

16. Contacts with NTC Driver?
 If the organization is represented, then anti-contact
rule covers
• Constituent of the organization "who supervises,
directs, or regularly consults with the organization's
lawyer concerning the matter"
• Constituent who have "authority to obligate the
organization with respect to the matter"
• Constituent "whose act or omission in connection
with the matter may be imputed to the organization
for purposes of civil or criminal liability
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LLP
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17. The Accident #2 – NTC Witnesses
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LLP
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NTC
CEO
TD
NTC
EE
W3
Nationwide
Trucking Co.
NTC
Driver
Plaintiff

18. But Beware . . .
 "[7] In communicating 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."
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LLP
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19. The Accident #2 – Former
Constituent
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LLP
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W1
TD
W2
W3
Nationwide
Trucking Co.
Ex-
NTC
Driver
Plaintiff

20. No Coverage for Former
Constituents
 "[7] . . . Consent of the organization's lawyer is not
required for communication with a former
constituent. . . . In communicating with a . . .
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 "
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LLP
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21. The Accident #2 – Constituent with
Separate Counsel
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LLP
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W1
TD
W2
W3
Nationwide
Trucking Co.
NTC
Driver
Plaintiff

22. Separate Counsel
 "If a constituent of the organization is represented in
the matter by his or her own counsel, the consent by
that counsel to a communication will be sufficient for
purposes of this Rule. Compare Rule 4-3.4(f)."
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LLP
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23. Points to Emphasize
 Protection only about matter of representation
 Anti-Contact Rule does not turn on
• Method of communication
− Prevents communication in person, by email,
telephone, etc.
• Who initiates communication
− "Plaintiff called me" is not an excuse
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LLP
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24. Client May Speak to Covered Person
 "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." Rule 4-4.2 cmt
[4]
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LLP
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25. Communication with In-House
Counsel
 ABA Formal Opinion 06-443 indicates such
communications are permitted
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LLP
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26. The “Final Exam”
 You are corporate counsel for Better Technologies
Company (BTC)
 BTC is negotiating new contracts with Supplier
 At the first meeting, BTC has the following persons on its
team:
1) BTC attorney
2) BTC executive, a law school graduate no longer licensed
3) BTC executive, who has never been to law school but is
quite “clever”
 Supplier’s team consists of Supplier’s non-lawyer COO,
Supplier’s sales manager, and Supplier’s attorney
 Who can contact whom directly after the meeting? 26
© 2014 Armstrong Teasdale
LLP

27. Thank You
Michael Downey
Armstrong Teasdale LLP
314.342.8072 direct
Mdowney@armstrongteasdale.com
Or www.MissouriEthicsLawyer.com
Webinar CLE Code: MD1112
© 2014 Armstrong Teasdale
LLP
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