Following is the 42nd post in a series from Parker Law Group about recent changes to the California Bar Association (CBA)’s Rules of Professional Conduct (RPC). This rule is found in Chapter 4 – “Transactions with Persons Other than Clients,” focusing specifically on communication with a represented party. The Rule of Professional Conduct, as revised, is as follows:
Rule 4.2 Communication with a Represented Person
(a) In representing a client, a lawyer shall not communicate directly or indirectly 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.
(b) In the case of a represented corporation, partnership, association, or other private or governmental organization, this rule prohibits communications with:
(1) A current officer, director, partner, or managing agent of the organization; or
(2) A current employee, member, agent, or other constituent of the organization, if the subject of the communication is any act or omission of such person in connection with the matter which may be binding upon or imputed to the organization for purposes of civil or criminal liability.
(c) This rule shall not prohibit:
(1) communications with a public official, board, committee, or body; or
(2) communications otherwise authorized by law or a court order.
(d) For purposes of this rule:
(1) “Managing agent” means an employee, member, agent, or other constituent of an organization with substantia discretionary authority over decisions that determine organizational policy.
(2) “Public official” means a public officer of the United States government, or of a state, county, city, town, political subdivision, or other governmental organization, with the comparable decision-making authority and responsibilities as the organizational constituents described in paragraph (b)(1).
The differences between the CBA’s previous version of this rule (Rule 2-100) and the new one – Rule 4.2, as set forth above – are minor. The biggest change was the addition of a fourth subdivision – (d). Rule 4.2(d) defines “managing agent” and “public official.” Another change was the removal of the second sub-subdivision under the third subdivision. The new rule – in subdivision (c), listing types of communication not prohibited – no longer mentions “communications initiated by a party seeking advice or representation from an independent lawyer of the party’s choice.” The third change is that the word “current” has been added to the two groups of people mentioned in Rule 4.2(b)(1)-(2), who can be defined as a “party” in a legal matter.
The only portion of CBA’s new rule that matches the American Bar Association (ABA)’s Rule 4.2 is subdivision (a). There are two minor differences in that paragraph, however. The CBA’s rule says a lawyer “… shall not communicate directly or indirectly” about the subject of representation. The other minor change is the phrase “… or is authorized to do so by law or a court order” – as an exception to the prohibition mentioned here. Because ABA’s Rule 4.2 is only one paragraph long, most of CBA’s Rule 4.2 – subdivisions (b), (c), and (d) – don’t correspond at all to the ABA version of this rule.
Benefit: Generally speaking, an attorney who follows the guidelines set forth in this rule will be less likely to run the risk of accusations of legal malpractice … which, in turn, will greatly benefit any clients the attorney may be representing.
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