Rule 4.2: Communication w/Person Rep. By Counsel
ABA RULE 4.2
Adopted, Effective Jan. 1, 2008
TRANSACTIONS WITH PERSONS OTHER THAN CLIENTS
Rule 4.2 Communication With Person Represented By Counsel
In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order. An otherwise unrepresented party to whom limited representation is being provided or has been provided in accordance with Rule 1.2(f)(1) is considered to be unrepresented for purposes of this Rule, except to the extent the limited representation lawyer provides other counsel written notice of a time period within which other counsel shall communicate only with the limited representation lawyer.
NEW HAMPSHIRE COMMENT TO PROPOSED RULE 4.2
The ABA Comments have noted that when an organization – a corporation, governmental body, or other entity – is the represented person, certain organizational personnel will be "off-limits" under Rule 4.2. This issue has frequently been the subject of litigation. The ABA Comments adopt what is known as the managing-speaking test. Several other tests have been used, known as the control group test, the blanket ban, the alter ego test and the balancing test. The New Hampshire Supreme Court has not ruled on this matter.
While not controlling on the question of permissible ex parte contact with employees of a corporate opponent, it is worth noting that New Hampshire has adopted the control-group test for purposes of applying the attorney-client privilege in the corporate setting. See N.H. R. Evid. 502(a)(2); Klonoski v. Mahlab, 1996 U.S. Dist. LEXIS 20360 n.2, rev'd. on other grounds 156 F.3d 225 (1st Cir. 1998).
ABA RULE 4.2