The No Contact Rule: Common Scenarios and Best Practices

Partner and Co-Head of Olshan’s Litigation Practice Group Brian Katz authored an article with litigation associate Sahand Farahati published on December 9 in New York Law Journal (subscription required) entitled “The No Contact Rule: Common Scenarios and Best Practices.” The article discusses Rule 4.2 of the New York Rules of Professional Conduct, also known as the “No Contact Rule,” which states: “a lawyer shall not communicate or cause another to communicate about the subject of the representation with a party the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the prior consent of the other lawyer or is authorized to do so by law.” “The rule arises in a variety of contexts where its application is murky,” the authors explain, “such as settlement negotiations and investigations. Careful consideration of the Rule is imperative as its violation can have a range of consequences.” They go on to consider common situations in which the rule might arise: during settlement negotiations, when counsel in the course of investigation wishes to speak to employees of a company they are litigating against, when a lawyer wants to communicate directly with the in-house counsel of a corporate entity that is represented by outside counsel, and when an adversary’s client is copied on an email chain and a reply-all might violate the Rule. “In making judgment calls about whether a communication is authorized,” the authors conclude, “counsel should always keep in mind the purpose of the Rule—to ‘prevent situations in which a represented party may be taken advantage of by adverse counsel.’ Niesig, 76 N.Y.2d at 370.”