The key to contacting an individual who is represented by another lawyer is whether the existing representation relates to the same matter the lawyer wishes to discuss.
I recently read an ethics article about contacting a represented person in an unrelated legal matter. I wonder if I am allowed to do that if I know that a person is represented by a lawyer.
Many people are confused about this topic. The State Bar of Wisconsin Professional Ethics Committee has issued an informal ethics opinion that addresses this question under different scenarios. One scenario involves a witness who was represented by a lawyer in a different matter. Another scenario involves a lawyer who is asked to meet with a potential client, even though that person is represented by counsel. The third scenario involves a situation in which a lawyer wishes to contact a former client, now represented by a new attorney, to discuss fees owed to the lawyer. Informal Ethics Opinion EI-17-04 can be found at www.wisbar.org/ethop.
State Bar Ethics Counsel Tim Pierce has also discussed a very common scenario: a lawyer wishes to contact a person (who likely would be a witness on behalf of the lawyer’s client) but knows that the person is represented by an attorney in an unrelated criminal proceeding. There is always concern about whether the lawyer can contact this potential witness directly because the potential witness has an attorney in the other pending matter. The conclusion is that the lawyer can contact the person as a potential witness because the representation by the other lawyer is in an unrelated matter. It would be appropriate to contact the attorney for the other person (the potential witness) before making a contact, but that is not a requirement under the Rules. Pierce’s article, Ethical Dilemmas: Contact with a Person Represented in an Unrelated Matter, appears in the June 21, 2017 issue of InsideTrack.
These are challenging situations because of the requirements of SCR 20:4.2, which provides that a lawyer may not communicate with another person the lawyer knows is represented by counsel. The SCR 20:4.2 requirements (or perhaps protections) only apply, however, when a lawyer is communicating about the subject of his or her representation and knows that the person he or she is communicating with is represented by another lawyer “in the matter.”
The reference to “in the matter” is a significant limit on the applicability of the Rule. If the person a lawyer wishes to communicate with is not represented by counsel in connection with the legal matter the lawyer is working on for the client, there is much more freedom to contact the person directly without seeking permission from the attorney who represents that person. Obviously, much depends on the exact fact situation, as well as a reasonable determination of whether the person the lawyer wishes to contact is represented by counsel in the matter that the lawyer wants to discuss.
I encourage you to look at Informal Ethics Opinion EI-17-04 and Tim Pierce’s article for more guidance.
If the person a lawyer wishes to communicate with is not represented by counsel in connection with the legal matter the lawyer is working on for the client, there is much more freedom to contact the person directly.