Lawyer Contacts with Adverse Parties and Experts
When can a lawyer communicate with an adverse party, opposing expert, or an adverse party’s employees?
Issues involving “ex parte” contacts with non-client parties generate some confusion due to the technical aspects of when lawyer communications with adverse parties, experts, or employees are appropriate.
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1. Primary Rule: Rule 4.02
Rule 4.02, Texas Disciplinary Rules of Professional Conduct, is the relevant rule governing these ex parte contacts. “Ex parte” contacts, in this context, refer to communications by a lawyer with an individual outside of the presence and participation of that individual’s counsel or retaining counsel.
Rule 4.02 reads:
(a) In representing a client, a lawyer shall not communicate or cause or encourage another to communicate about the subject of the representation with a person, organization or entity of government the lawyer knows to be represented by another lawyer regarding that subject, unless the lawyer has the consent of the other lawyer or is authorized by law to do so.
(b) In representing a client a lawyer shall not communicate or cause another to communicate about the subject of representation with a person or organization a lawyer knows to be employed or retained for the purpose of conferring with or advising another lawyer about the subject of the representation, unless the lawyer has the consent of the other lawyer or is authorized by law to do so.
(c) For the purpose of this rule, "organization or entity of government" includes: (1) those persons presently having a managerial responsibility with an organization or entity of government that relates to the subject of the representation, or (2) those persons presently employed by such organization or entity and whose act or omission in connection with the subject of representation may make the organization or entity of government vicariously liable for such act or omission.
(d) When a person, organization, or entity of government that is represented by a lawyer in a matter seeks advice regarding that matter from another lawyer, the second lawyer is not prohibited by paragraph (a) from giving such advice without notifying or seeking consent of the first lawyer.