In the United States, professional rules for lawyers prohibit them from writing or talking to people they know have their own lawyers without those lawyers present.
If you ask a lawyer to send an e-mail to the business people on the other side of a deal, they will want to make sure they are copying a lawyer on that side. If you ask a lawyer to attend a call with business people on the other side, they will want to make sure a lawyer for that side also joins.
Says who?
Lawyers get their licenses to practice law from the bar association of their state. Each bar association has its own rules, so they can vary state to state. However, most states’ bar associations use some version of the ABA’s Model Rules of Professional Conduct.
Model Rules of Professional Conduct
Rule 4.2: Communication with Person Represented by Counsel
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.
California Rules of Professional Conduct
Rule 4.2 Communication with a Represented Person
(Rule Approved by the Supreme Court, Effective November 1, 2018)
- 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.
- In the case of a represented corporation, partnership, association, or other private or governmental organization, this rule prohibits communications with:
- A current officer, director, partner,*or managing agent of the organization; or
- 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.
- This rule shall not prohibit:
- communications with a public official, board, committee, or body; or
- communications otherwise authorized by law or a court order.
- For purposes of this rule:
- “Managing agent” means an employee, member, agent, or other constituent of an organization with substantial* discretionary authority over decisions that determine organizational policy.
- “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).
New York Rules of Conduct
Rule 4.2: Communication with Person Represented by Counsel
Effective April 1, 2009, as amended through June 10, 2022
- In representing a client, 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 prior consent of the other lawyer or is authorized to do so by law.
- Notwithstanding the prohibitions of paragraph (a), and unless otherwise prohibited by law, a lawyer may cause a client to communicate with a represented person unless the represented person is not legally competent, and may counsel the client with respect to those communications, provided the lawyer gives reasonable advance notice to the represented person’s counsel that such communications will be taking place.
- A lawyer who is acting pro se or is represented by counsel in a matter is subject to paragraph (a), but may communicate with a represented person, unless otherwise prohibited by law and unless the represented person is not legally competent, provided the lawyer or the lawyer’s counsel gives reasonable advance notice to the represented person’s counsel that such communications will be taking place.