As the holiday party season approaches, crowded calendars and endless small talk become part of the seasonal ritual. After long days spent negotiating or advising clients, the idea of casual mingling may sounds harmless – until a friendly chat turns into something more complicated. In the relaxed glow of an after-work gathering, it is easier than ever to forget professional boundaries and accidentally strike up a conversation with someone represented by another lawyer. These inadvertent exchanges can carry serious ethical implications and remind us that professionalism doesn’t take the night off – even during the holiday season.

To be honest, before writing this article, I assumed the rules imposed an absolute bar on any communication with a represented party. So, I was surprised to learn about all the exceptions built into ABA Model Rule 4.2, which outlines the guidelines for communicating with someone represented by counsel.  Before you find yourself cornered at a holiday party by someone you know has legal representation, let’s take a moment to brush up on what the rule actually says:

What if their lawyer permits the communication? Rule 4.2 permits you to speak to a represented party if their lawyer consents to the communication. While this might not occur in the context of contentious litigation, an estate beneficiary’s lawyer may recommend they speak directly to you. 

What if the represented person initiates the communication? The prohibition of speaking to a represented party under Rule 4.2 applies even if they initiate or consent to the communication. A lawyer must immediately terminate communication with someone if, after commencing communication, the lawyer learns that the person is one with whom communication is not permitted by the Rule.

What if we discuss something other than the representation? Rule 4.2 does not prohibit communication with a represented person (or an employee or agent of such a person) about matters outside the representation. Comment 4 provides that an issue or controversy between a government agency and a private party, or between two organizations, “does not prohibit a lawyer for either from communicating with nonlawyer representatives of the other regarding a separate matter.”

What if the communication is otherwise authorized by law? This form of communication may arise in the context of criminal law. Specifically, “[c]ommunications authorized by law may include communications by a lawyer on behalf of a client who is exercising a constitutional or other legal right to communicate with the government.” Such communications may also include a lawyer’s investigative activities when representing governmental entities prior to commencement of criminal or civil enforcement proceedings. However, Comment 5 also cautions government lawyers that they must comply with this Rule and honor the constitutional rights of the accused party when communicating with them in a criminal matter. 

What if the represented party is an organization? A lawyer is prohibited from communicating with a constituent at an organization who supervises, directs, or consults with the organization’s lawyer concerning legal matters. While the Rule does not prohibit a lawyer from speaking to a former constituent, tread lightly. They may have personal counsel, or the organization may elect to have defense counsel represent them, depending on the circumstances. To ensure you maintain a good working relationship with opposing counsel, you might consider coordinating the communication through them.

What if I have a court order? Comment 6 of Rule 4.2 provides that while rare, a court order may be granted permitting you to speak to a represented party (which would otherwise be prohibited by the Rule) if the communication with the person represented by counsel is necessary to avoid “reasonably certain injury.”

Comment 8 of Rule 4.2 notes that the prohibition on communication with a represented party only applies in circumstances where the lawyer knows that the person is, in fact, represented in the matter to be discussed. The Comment states that while this means that the lawyer must have actual knowledge of such representation, such actual knowledge may be inferred from the circumstances per Rule 1.0(f). In other words, “the lawyer cannot evade the requirement of obtaining the consent of counsel by closing eyes to the obvious.”

So, while the second glass of champagne may tempt you to strike up a conversation with the opposing party about settlement terms or to use the casual holiday setting to coax out an admission, resist the urge. Doing so would violate ABA Rule 4.2 prohibiting communication with a represented party about the subject of their case without their lawyer’s consent. That said, exchanging a few polite words about the weather or the whirlwind nature of the holiday season is perfectly acceptable, as long as the conversation steers clear from the subject of the litigation. Stay merry, stay ethical and good luck out there!