Careers

Diversity, Equity & Inclusion

Experience

Innovation

Interactive Maps

Locations

About

Pages

Meet our team of innovators
Ask us how we do it

Professionals

Insights

Services

Thompson Hine LLP, a full-service business law firm with approximately 400 lawyers in 11 offices, was ranked number 1 in the category “Most innovative North American law firms: New working models” by The Financial Times and was 1 of 7 firms shortlisted for The American Lawyer’s inaugural Legal Services Innovation Award. The firm has been recognized by the National Law Journal as a Legal Technology Trailblazer and featured by Bloomberg for its innovative service delivery models, which drive accuracy and predictability. The firm’s commitment to innovation is embodied in Thompson Hine SmartPaTHTM – a smarter way to work – predictable, efficient and aligned with client goals. For more information, please visit ThompsonHine.com and ThompsonHine.com/SmartPaTH.

Home | Thompson Hine LLP

Atlanta

Chicago

Cincinnati

Cleveland

Columbus

Dayton

Los Angeles

Minneapolis

New York

Silicon Valley

Washington, D.C.

<img style="max-width: 100%;height: auto;max-width: 100%;height: auto" loading="lazy" class="alignright size-medium wp-image-4811" src="https://www.thelawforlawyerstoday.com/wp-content/uploads/sites/754/2020/01/Communication-300x169.jpg" alt="" width="300" height="169">Most lawyers have a general understanding of the &ldquo;no-contact rule&rdquo;&nbsp; &mdash; namely that under state versions of <a href="https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_4_2_communication_with_person_represented_by_counsel/">Model Rule 4.2</a>, with a few exceptions, you can&rsquo;t communicate directly&nbsp;on the subject of the representation with someone you know&nbsp;is represented by counsel.&nbsp; But where does in-house counsel fit in?&nbsp; Is in-house counsel &ldquo;fair game&rdquo; for ex parte contact by opposing counsel?
Last month, the Virginia Supreme Court approved <a href="https://www.vsb.org/docs/LEO/1890.pdf">Legal Ethics Opinion 1890</a>, and answered &ldquo;Yes,&rdquo; in an opinion that also covered some&nbsp;other issues of concern to in-house counsel.
No need for protection
Even in the current legal services market, where there is a <a href="https://www.logikcull.com/blog/more-trends-reshaping-corporate-legal-departments-growing-expertise-leads-to-greater-insourcing">trend for corporate clients to in-source legal work</a>,&nbsp;many continue to rely <a href="https://www.law.com/legaltechnews/2018/11/07/legal-departments-are-insourcing-more-litigation-work-than-ever-before/?slreturn=20200026143253">on outside help for litigation</a> and other matters, setting up&nbsp;a seeming choice&nbsp;for an opponent&rsquo;s counsel &mdash;&nbsp;reach out to&nbsp;a company&rsquo;s inside lawyer, or&nbsp;contact outside counsel.
The new Virginia opinion lines up with several other authorities in confirming that&nbsp;contacting in-house counsel can be&nbsp;an ethically-permitted option, even under the &ldquo;no contact&rdquo; rule.
This question might come up in a couple other ways, too:&nbsp;&nbsp;when in-house counsel wants to contact an opponent&rsquo;s outside counsel, who must decide whether she can participate in the communication; or when&nbsp;in-house counsel for one party wants to&nbsp;communicate with in-house counsel for another party, when both are represented by outside counsel.
In confirming that&nbsp;a lawyer &ldquo;is generally permitted to communicate with a corporate adversary&rsquo;s in-house counsel about a case in which the corporation has hired outside&nbsp;counsel,&rdquo; the Virginia State Bar Association&rsquo;s Standing Committee&nbsp;&nbsp;on Legal Ethics referred to the purpose of Rule 4.2.&nbsp; The no-contact rule is &ldquo;to protect uncounseled persons against being taken advantage of by opposing counsel&rdquo; and to safeguard the client-lawyer relationship from interference, the Committee said.
Contact between the in-house lawyer and opposing counsel does not present either of these dangers, said the Committee.&nbsp; It is not likely that in-house counsel would be manipulated into making harmful disclosures, or do so inadvertently.&nbsp; Therefore, the Committee concluded, the in-house lawyer does not need the protection of the no-contact rule.
Mainstream view, and some nuances
Other jurisdictions have arrived at conclusions similar to&nbsp;the Virginia Ethics Committee&rsquo;s.&nbsp; See, e.g., <a href="https://www.thelawforlawyerstoday.com/wp-admin/post.php?post=4795&amp;action=edit">Op. 331 (D. C. Bar Ass&rsquo;n&nbsp;Oct. 2005)</a>&nbsp;(generally, no prior consent&nbsp;needed from company&rsquo;s outside counsel in order for&nbsp;a lawyer to&nbsp;communicate with in-house counsel on the&nbsp;subject of the representation);&nbsp;&nbsp;In re Grievance Proceeding, 2002 U.S. Dist. LEXIS 18417,&nbsp;2002 WL 31106389 (D. Conn. July 19, 2002) (general counsel of a corporation did not constitute a &ldquo;party&rdquo; for purposes of Connecticut&nbsp;Rule 4.2, and protecting attorney-client relationship did not require&nbsp;bar against ex parte contact);&nbsp; <a href="https://www.nycbar.org/member-and-career-services/committees/reports-listing/reports/detail/formal-opinion-2007-01-applicability-of-dr-7-104-the-no-contact-rule-to-contacts-with-in-house-counsel">Op. 2007-1 (N.Y. City Bar Ass&rsquo;n Jan. 1, 2007</a>) (discussing various scenarios and concluding under former disciplinary rule that lawyer with objective&nbsp;good faith belief that in-house counsel is acting as entity&rsquo;s lawyer may communicate with in-house counsel of a party known to be represented by outside counsel).
Likewise, the ABA&rsquo;s&nbsp;Formal Op. 06-443 (Aug. 5, 2006), says that Model Rule 4.2 &ldquo;generally does not prohibit&rdquo; outside counsel from&nbsp;communicating ex parte with an opposing party&rsquo;s&nbsp;inside counsel about the subject of the representation.&nbsp; See&nbsp;also Restatement (Third) of the Law Governing Lawyers &sect; 100 cmt. [c].
There are some nuances, however, which Rule 4.2 and/or the ABA opinion point to.
<ul>
<li>an adverse attorney should not communicate without consent with inside counsel who is part of&nbsp;the company&rsquo;s&nbsp;&ldquo;constituent&rdquo; group for the matter &ndash;who participated, for instance, in giving business advice or in making decisions that gave rise to the dispute;</li>
<li>contacting an organization&rsquo;s in-house counsel after being asked not to might violate the no-contact rule; and</li>
<li>Rule 4.2 and its comments describe&nbsp;permissive exceptions&nbsp;including contacts that are&nbsp;authorized by law (such as&nbsp;the&nbsp;constitutional right to petition the government)&nbsp;or a court order, or that don&rsquo;t relate to the subject of the dispute.</li>
</ul>

core/freeform

Ethics

Legal Ethics, Professional Responsibility and the Business of Law

Can we talk?  In-house counsel and opponent’s lawyer can communicate, says Va. opinion