These summaries were prepared by McGuireWoods LLP lawyer Thomas E. Spahn. They are based on the letter opinions issued by the Virginia State Bar. Any editorial comments reflect Mr. Spahn's current personal views, and not the opinions of the Virginia State Bar, McGuireWoods or its clients. 
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57-In-House Lawyers

77-Communicating with an Individual Adversary

The rule prohibiting certain ex parte contacts applies to a railroad's in-house lawyer, the head of the railroad's claims department (who has a law degree but does not practice in the law department) and the railroad's claims agents working under the claims department head (who could not permissibly direct his staff to contact injured workers ex parte if the lawyer himself could not do so). "This attorney cannot establish and implement a procedure for his staff to routinely contact represented workers when the initiation of that contact as well as the content of the communications are incompatible with the attorney's responsibilities under Rule 4.2. Because claims agents who have law degrees are providing legal services to their employer, those claims agents are also governed by Rule 4.2. The railroad cannot justify such ex parte contacts by arguing that it is confirming written communications from the injured workers that they have lawyers, because the written notice is sufficient. Even if it were not, any ex parte communication must stop when the worker indicates that he has a lawyer. Any lawyers in the railroad's law department "cannot circumvent the requirements of Rule 4.2 by directing members of the claims department to initiate communications the attorney himself is precluded from conducting." Determining whether the non-lawyers ex parte contacts with injured workers "occurred with sufficient involvement of the in-house counsel" to trigger Rule 4.2 requires factual inquiry. Although clients may always contact the other clients directly, an in-house lawyer “is not a party to the dispute but instead is counsel for a party."

Copyright 2000, Thomas E. Spahn