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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.

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<img style="max-width: 100%;height: auto;max-width: 100%;height: auto" loading="lazy" class="alignright size-medium wp-image-5368" src="https://www.thelawforlawyerstoday.com/wp-content/uploads/sites/754/2020/12/No-contact-rule-2-300x191.jpg" alt="" width="300" height="191">The scope of the &ldquo;no-contact rule&rdquo; &mdash; barring a lawyer from communicating with represented persons &mdash; is spotlighted in a disqualification ruling that a Florida district court handed down earlier this month.&nbsp; The <a href="https://filehost.thompsonhine.com/uploads/Opinion_-_Frock_v_Davis,_Davis__Associates__24c3.pdf">opinion</a> is a reminder that the prohibition against contact (without permission of the person&rsquo;s counsel) extends only to &ldquo;the subject of the representation.&rdquo;
&ldquo;Did not discuss Plaintiff&rsquo;s case...&rdquo;
The plaintiff sued the defendant collection agency in the Middle District of Florida for allegedly violating the federal <a href="https://www.ftc.gov/enforcement/rules/rulemaking-regulatory-reform-proceedings/fair-debt-collection-practices-act-text">Fair Debt Collection Practices Act</a>; she was represented by the Agruss Law Firm.&nbsp; In early November, according to the collection agency, Agruss employees contacted it twice, even though the firm knew that the collection agency was represented by counsel in the plaintiff&rsquo;s case.
Based on Florida&rsquo;s version 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>, &ldquo;Communication with Person Represented by Counsel,&rdquo; the collection agency demanded that plaintiff&rsquo;s counsel be disqualified based on the phone contacts.
Not so fast, responded the Agruss firm.&nbsp; The law firm explained in its <a href="https://filehost.thompsonhine.com/uploads/Opp_to_DQ_-_Frock_v._Davis,_Davis__Associates,_LLC_10e6.pdf">brief</a> in opposition to disqualification that it frequently represents plaintiffs in FDCPA actions.&nbsp; It acknowledged that on one of the dates in question a paralegal of the firm had phoned the collection agency &mdash; but it submitted unrebutted affidavit evidence that the call did not relate to the plaintiff&rsquo;s case in the Florida action.&nbsp; Rather, said the law firm, its paralegal had called the collection agency in order to investigate a potential FDCPA claim against the collection agency by a completely different person.&nbsp; The law firm later filed a separate complaint in the Northern District of Texas against the collection agency on that person&rsquo;s behalf.
A second call to the collection agency was made a few days later by a principal of the Agruss firm, who simply listened to the agency&rsquo;s outgoing voicemail message, and who never spoke to anyone at the agency, according to a second affidavit.
Based on this evidence, the district court denied the plaintiff&rsquo;s motion to disqualify the Agruss firm, holding that there had been no violation of the &ldquo;no-contact&rdquo; rule.
Must be &ldquo;about the subject of the representation&rdquo;
Florida&rsquo;s Rule 4-4.2, like its Model Rule counterpart, provides that in representing a client, a lawyer &ldquo;must not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter,&rdquo; without the consent of the other lawyer.
Although the evidence showed that the Agruss firm had contacted the defendant collection agency directly, the court said, it was about a completely different case.&nbsp; Therefore, the contact was not &ldquo;about the subject of the representation,&rdquo; as would be necessary in order to demonstrate a violation of the rule, according to the court.
Some &ldquo;no-contact rule&rdquo; basics
The law firm in this case was on the right side of the no-contact rule.&nbsp; As <a href="https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_4_2_communication_with_person_represented_by_counsel/comment_on_rule_4_2/">comment [4]</a> notes, it does not bar &ldquo;communication with a represented person, ...&nbsp; concerning matters outside the representation. &rdquo;&nbsp; But&nbsp; there are some fine points about Rule 4.2 (set out in the comments) that you should keep in mind, including:
<ul>
<li>The rule applies even though the represented person initiates or consents to the communication.</li>
<li>You may not make a communication prohibited by the no-contact rule through the acts of another. (See <a href="https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_8_4_misconduct/">Model Rule 8.4(a)</a>.)</li>
<li>&ldquo;Parties to a matter&rdquo; may always communicate directly with each other, even though they are represented by counsel.</li>
</ul>
What about business entities?&nbsp; There is a large body of cases and ethics opinions regarding contacts with current and former employees of entities.&nbsp; In general, under the Model Rules&rsquo; approach, counsel for an entity can&rsquo;t assert blanket representation of all the employees so as to bring them within the scope of the no-contact rule and keep opposing counsel from contact with them.&nbsp; (See ABA Formal Eth. Op. 396 (July 28, 1995).)&nbsp; On the other hand, contact is improper with &ldquo;a constituent of the organization&rdquo; who &ldquo;regularly consults with the organization&rsquo;s lawyer concerning 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.&rdquo;&nbsp; In contrast, as <a href="https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_4_2_communication_with_person_represented_by_counsel/comment_on_rule_4_2/">comment [7]</a> notes, former employees of an organization are generally fair game (unless represented by their own counsel).
Seek advice if you have a no-contact rule issue.&nbsp; And as we frequently say, this is an area where you need to pay attention to the relevant jurisdiction&rsquo;s rules and opinions.

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Ethics

Legal Ethics, Professional Responsibility and the Business of Law

No DQ for contacting represented party on a different subject, district court says