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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23-Communicating with an Adversary - Miscellaneous

77-Communicating with an Individual Adversary

78-Communicating with an Employee of a Corporate Adversary

In a compendium opinion, analyzing Virginia Rule 4.2’s prohibition on ex parte communications with a represented person: (1) the prohibition applies even if the represented person creates the communication (although the lawyer receiving such a communication can end it immediately,” but not “instantaneously” pointing to the Zaug case); (2) the prohibition only applies to the “matter” in which the person is represented by a lawyer. Although the “matter” might be transactional or other non-litigation matter, ex parte communications are permissible even if the communication involves facts that also relate to the matter in which the person is represented” (such as a lawyer that communicated ex parte about a civil matter with a person who is “represented in a related criminal matter”); (3) the prohibition only applies if the communicating lawyer has actual knowledge that the person is represented in the matter. Thus, a lawyer may communicate ex parte to determine if the person is represented in the matter. This should apply to a lawyer representing herself; (5) lawyers may not “use” a client to “circumvent Rule 4.2.” For instance, a lawyer may not “tell[] the client or third party to say or ‘script[]’ the communication with the represented adversary”; (6) lawyers similarly may not use an investigator or third party to communicate directly with a represented person; (7) “prosecutors, government and agents, and informants may communicate with represented criminal suspects in a non¬custodial setting up until indictment, information or when the represented person’s Sixth Amendment right to counsel would attach”; (8) lawyers may freely communicate ex parte with corporation’s employees unless they are in the represented corporations’ “control group” or are “alter ego” of the corporation (which some Virginia federal courts have not adopted); (9) lawyers may freely communicate ex parte with represented corporations’ former employer agent even if they were in the control group. However, in that and all settings, lawyers may not intrude into the corporation’s privilege protection during such otherwise permissible ex parte communications; (10) lawyers communicating ex parte with represented corporations’ employees: do so permitted under Virginia Rule 4.2 even though the corporation has a “general counsel”; they freely communicate with the corporation’s in-house lawyers without outside lawyers’ consent; (11) because insurance companies generally are not named party to liability cases against their insureds, lawyers representing insureds’ adversaries generally may communicate ex parte with insurance company employees (although whether or not an attorney-client relationship exists between defense counsel and the insurer is a legal issue beyond the Committee’s purview); (12) lawyers may freely communicate with a represented person who seeks a “second opinion” or “advice of a general nature” about the matter; (13) the “authorized by law” exception is basically undefined, but generally permits ex parte communications during depositions, and permits lawyers to send contractually required notice provisions to represented persons; (14) lawyers generally cannot point to “reasonable excuses or justification” for bypassing the Virginia Rule 4.2 prohibition even if, for example, the plaintiff’s lawyer believes that an insurance defense counsel has not advised the underinsured client about his “right to hire personal counsel.”

Copyright 2000, Thomas E. Spahn