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Rule 4.2. Communication with Persons Represented byLegal Professionals.

(a) General Rule. In representing a client, a lawyershall not communicate about the subject of the representation with a person thelawyer knows to be represented by a legal professional in the matter,unless the lawyer has the consent of the legal professional.Notwithstanding the foregoing, an attorney may, without such prior consent,communicate with another?s client if authorized to do so by any law, rule, or courtorder, in which event the communication shall be strictly restricted to thatallowed by the law, rule, or court order, or as authorized by paragraphs (b),(c), (d) or (e) of this Rule.

(b) Rules Relating to Unbundling of Legal Services. Alawyer may consider a person whose representation by a legalprofessional in a matter does not encompass all aspects of the matter tobe unrepresented for purposes of this Rule and Rule 4.3, unless that person?slegal professional has provided written notice to the lawyer of those aspectsof the matter or the time limitation for which the person is represented. Onlyas to such aspects and time is the person considered to be represented by alegal professional.

(c) Rules Relating to Government Lawyers Engaged in Civilor Criminal Law Enforcement. A government lawyer engaged in a criminal orcivil law enforcement matter, or a person acting under the lawyer's directionin the matter, may communicate with a person known to be represented by alawyer if:

(1) the communication is in the courseof, and limited to, an investigation of a different matter unrelated to therepresentation or any ongoing, unlawful conduct; or

(2) the communication ismade to protect against an imminent risk of death or serious bodily harm orsubstantial property damage that the government lawyer reasonably believes mayoccur and the communication is limited to those matters necessary to protectagainst the imminent risk; or

(3) the communication is made at the time of the arrest ofthe represented person and after that person is advised of the right to remainsilent and the right to counsel and voluntarily and knowingly waives theserights; or

(4) the communication is initiated by the representedperson, directly or through an intermediary, if prior to the communication therepresented person has given a written or recorded voluntary and informedwaiver of counsel, including the right to have substitute counsel, for thatcommunication.

(d) Organizations as Represented Persons.

(1) When the representedperson is an organization, an individual is represented by counsel for theorganization if the individual is not separately represented with respect tothe subject matter of the communication, and

(A) with respect to acommunication by a government lawyer in a civil or criminal law enforcementmatter, is known by the government lawyer to be a current member of the controlgroup of the represented organization; or

(B) with respect to a communication by a lawyer in anyother matter, is known by the lawyer to be

(ia current member of the control group of therepresented organization; or

(ii) a representative of the organization whose acts oromissions in the matter may be imputed to the organization under applicablelaw; or

(iii) a representative of the organization whose statementsunder applicable rules of evidence would have the effect of binding theorganization with respect to proof of the matter.

(2) The term "control group" means the following persons: (A) the chief executiveofficer, chief operating officer, chief financial officer, and the chief legalofficer of the organization; and (B) to the extent not encompassed bySubsection (A), the chair of the organization's governing body, president,treasurer, secretary and a vice-president or vice-chair who is in charge of aprincipal business unit, division or function (such as sales, administration orfinance) or performs a major policy-making function for the organization; and(C) any other current employee or official who is known to be participating asa principal decision maker in the determination of the organization?s legalposition in the matter.

(3) This Rule does notapply to communications with government parties, employees or officials unlesslitigation about the subject of the representation is pending or imminent.Communications with elected officials on policy matters are permissible whenlitigation is pending or imminent after disclosure of the representation to theofficial.

(e) Limitations on Communications. When communicatingwith a represented person pursuant to this Rule, no lawyer may

(1) inquire aboutprivileged communications between the person and their legalprofessional or about information regarding litigation strategy or legalarguments of their legal professional or seek to induce the person to forgorepresentation or disregard the advice of the person?s legal professional; or

(2) engage in negotiations of a plea agreement, settlement,statutory or non-statutory immunity agreement or other disposition of actual orpotential criminal charges or civil enforcement claims or sentences orpenalties with respect to the matter in which the person is representedby a legal professional unless such negotiations are permitted bylaw, rule or court order.

Comment

[1] Rule 4.2 of the UtahRules of Professional Conduct deviates substantially from ABA Model Rule 4.2 bythe addition of paragraphs (b), (c), (d) and (e). Paragraphs (c),(d) and (e) are substantially the same as the former Utah Rules 4.2(b), (c) and(d), adopted in 1999, as are most of the corresponding comments that addressthese three paragraphs of this Rule. There is also a variation from the ModelRule in paragraph (a), where the body of judiciallycreated rules are added as a source to which the lawyer may lookfor general exceptions to the prohibition of communication with personsrepresented by a legal professional. (Because of these major differences, thecomments to this Rule do not correspond numerically to the comments in ABAModel Rule 4.2.)

[2] This Rule contributes to the proper functioning of the legalsystem by protecting a person who has chosen to be represented by a legalprofessional in a matter against possible overreaching byother lawyers who are participating in the matter, interference bythose lawyers with the client-legal professional relationship, andthe uncounselled disclosure of informationrelating to the representation.

[3] This Rule applies to communications with any person who isrepresented by a legal professional concerning the matter to whichthe communication relates.

[4] This Rule applies even though the represented person initiatesor consents to the communication. A lawyer must immediately terminatecommunication with a person if, after commencing communication, the lawyerlearns that the person is one with whom communication is not permitted by thisRule.

[5] This Rule does not prohibit communication with a representedperson or an employee or agent of such a person where the subject of thecommunication is outside the scope of the representation. For example, theexistence of a controversy between a government agency and a private party,between two organizations, between individuals, or between an organization andan individual does not prohibit a lawyer for either from communicatingwith nonlawyer representatives of the otherregarding a separate matter. Nor does the Rule prohibit government lawyers fromcommunicating with a represented person about a matter that does not pertain tothe subject matter of the representation but is related to the investigation, undercoveror overt, of ongoing unlawful conduct. Moreover, this Rule does not prohibit alawyer from communicating with a person to determine if the person in fact isrepresented by a legal professional concerning the subject matter that thelawyer wishes to discuss with that person.

[6] This Rule does not preclude communication with a representedperson who is seeking a second opinion from a lawyer who is not otherwiserepresenting a client in the matter. A lawyer may not make a communicationprohibited by this Rule through the acts of another. See Rule 8.4(a). Partiesto a matter may communicate directly with each other, and a lawyer is notprohibited from advising a client concerning a communication that the client islegally entitled to make.

[7] A lawyer may communicate with a person who is known to berepresented by a legal professional in the matter to which thecommunication relates only if the communicating lawyer obtains the consent ofthe represented person's legal professional, orif the communication is otherwise permitted by paragraphs (a), (b) or (c).Paragraph (a) permits a lawyer to communicate with a person known to berepresented by a legal professional in a matter without firstsecuring the consent of the represented person?s legal professional ifthe communicating lawyer is authorized to do so by law, rule or court order.Paragraph (b) recognizes that the scope of representation of a person by alegal professional may, under Rule 1.2 of the Rules of ProfessionalConduct be limited by mutual agreement. Because a lawyer for anotherparty cannot know which of Rule 4.2 or 4.3 applies under these circumstances,the legal professional who has undertaken a limited representation must assumethe responsibility for informing another party?s lawyer of the limitations.This ensures that such a limited representation will not improperly or unfairlyinduce an adversary?s lawyer to avoid contacting the person on those aspects ofa matter for which the person is not represented by a legal professional. Notethat this responsibility on the legal professional undertaking limited-scoperepresentation also relates to the ability of another party?s lawyer to makecertain ex parte contacts without violating Rule 4.3. UtahRule of Professional Conduct 4.2(b) and related sections of this Comment arepart of the additions to the ABA Model Rules clarifying that a lawyer mayundertake limited representation of a client under the provisions of Rule 1.2.Paragraph (c) specifies the circumstances in which government lawyers engagedin criminal and civil law enforcement matters may communicate with personsknown to be represented by a lawyer in such matters without first securingconsent of that lawyer.

[8] A communication with a represented person is authorized byparagraph (a) if permitted by law, rule or court order. This recognizesconstitutional and statutory authority as well as the well-established role ofthe state judiciary in regulating the practice of the legal profession. Directcommunications are also permitted if they are made pursuant to discoveryprocedures or judicial or administrative process in accordance with the ordersor rules of the court or other tribunal before which a matter is pending.

[9] A communication is authorized under paragraph (a) if the lawyeris assisting the client to exercise a constitutional right to petition thegovernment for redress of grievances in a policy dispute with the governmentand if the lawyer notifies the government's lawyer in advance of the intendedcommunication. This would include, for example, a communication by a lawyerwith a governmental official with authority to take or recommend action in thematter, provided that the sole purpose of the lawyer?s communication is toaddress a policy issue, including the possibility of resolving a disagreementabout a policy position taken by the government. If, on the other hand, thematter does not relate solely to a policy issue, the communicating lawyer mustcomply with this Rule.

[10] In the event the person with whom the lawyer communicates isnot known to be represented by a legal professional in the matter,the lawyer?s communication is subject to Rule 4.3.

[11] Paragraph (c) of this Rule makes clear that this Rule doesnot prohibit all communications with represented persons by state or federalgovernment lawyers (including law enforcement agents and cooperating witnessesacting at their direction) when the communications occur during the course ofcivil or criminal law enforcement. The exemptions for government lawyers containedin paragraph (c) of this Rule recognize the unique responsibilities ofgovernment lawyers to enforce public law. Nevertheless, where the lawyer isrepresenting the government in any other role or litigation (such as a contractor tort claim, for example) the same rules apply to government lawyers as areapplicable to lawyers for private parties.

[12] A "civil law enforcement proceeding" means a civilaction or proceeding before any court or other tribunal brought by thegovernmental agency that seeks to engage in the communication under relevantstatutory or regulatory provisions, or under the government's police orregulatory powers to enforce the law. Civil law enforcement proceedings do notinclude proceedings related to the enforcement of an administrative subpoena orsummons or a civil investigative demand; nor do they include enforcementactions brought by an agency other than the one that seeks to make thecommunication.

[13] Under paragraph (c) of this Rule, communications arepermitted in a number of circumstances. For instance, subparagraph (c)(1) permits the investigation of a different matterunrelated to the representation or any ongoing unlawful conduct. (Unlawfulconduct involves criminal activity and conduct subject to a civil law enforcementproceeding.) Such violations include, but are not limited to, conduct that isintended to evade the administration of justice including in the proceeding inwhich the represented person is a defendant, such as obstruction of justice,subornation of perjury, jury tampering, murder, assault, or intimidation ofwitnesses, bail jumping, or unlawful flight to avoid prosecution. Also,permitted are undercover activities directed at ongoing criminal activity, evenif it is related to past criminal activity for which the person is representedby counsel.

[14] Under subparagraph (c)(2), agovernment lawyer may engage in limited communications to protect against animminent risk of serious bodily harm or substantial property damage. Theimminence and gravity of the risk will be determined from the totality of thecircumstances. Generally, a risk would be imminent if it is likely to occurbefore the government lawyer could obtain court approval or take otherreasonable measures. An imminent risk of substantial property damage mightexist if there is a bomb threat directed at a public building. The Rule alsomakes clear that a government attorney may communicate directly with arepresented party at the time of arrest of the represented party without theconsent of the party?s counsel, provided that the represented party has beenfully informed of his or her constitutional rights at that time and has waivedthem. A government lawyer must be very careful to follow Rule 4.2(d) and wouldhave a significant burden to establish that the waiver of right tocounsel was knowing and voluntary. Thebetter practice would include a written or recorded waiver. Nothing in thisRule, however, prevents law enforcement officers, even if acting under thegeneral supervision of a government lawyer, from questioning a representedperson. The actions of the officers will not be imputed to the governmentlawyer unless the conversation has been " scripted"by the government lawyer.

[15] If government lawyers have any concerns about the applicabilityof any of the provisions of paragraph (c) or are confronted with othersituations in which communications with represented persons may be warranted,they may seek court approval for the ex parte communication.

[16] Any lawyer desiring to engage in a communication with arepresented person that is not otherwise permitted under this Rule must applyin good faith to a court of competent jurisdiction, either ex parte orupon notice, for an order authorizing the communication. This means, dependingon the context: (1) a district judge or magistrate judge of a United StatesDistrict Court; (2) a judge or commissioner of a court of general jurisdictionof a state having jurisdiction over the matter to which the communicationrelates; or (3) a military judge.

[17] In determining whether a communication is appropriate alawyer may want to consider factors such as: (1) whether the communication withthe represented person is intended to gain information that is relevant to thematter for which the communication is sought; (2) whether the communication isunreasonable or oppressive; (3) whether the purpose of the communication is notprimarily to harass the represented person; and (4) whether good cause existsfor not requesting the consent of the person?s legal professional prior to thecommunication. The lawyer should consider requesting the court to make awritten record of the application, including the grounds for the application,the scope of the authorized communications, and the action of the judicial officer,absent exigent circumstances.

[18] Organizational clients are entitled to the protections ofthis Rule. Paragraph (d) specifies which individuals will be deemed forpurposes of this Rule to be represented by the lawyer who is representing theorganization in a matter. Included within the control group of anorganizational client, for example, would be the designated high levelofficials identified in subparagraph(d)(2).Whether an officer performs a major policy function is to be determined byreference to the organization's business as a whole. Therefore, avice-president who has policy making functions in connection with only a unitor division would not be a major policy maker for that reason alone, unlessthat unit or division represents a substantial part of the organization's totalbusiness. A staff member who gives advice on policy but does not haveauthority, alone or in combination with others, to make policy does not performa major policy making function.

[19] Also included in the control group are other currentemployees known to be "participating as principal decision makers" inthe determination of the organization?s legal position in the proceeding orinvestigation of the matter. In this context, "employee" could alsoencompass former employees who return to the company's payroll or arespecifically retained for compensation by the organization to participate asprincipal decision makers for a particular matter. In general, however, alawyer may, consistent with this Rule, interview a former employee of anorganization without consent of the organization?s lawyer.

[20] In a criminal or civil law enforcement matter involving arepresented organization, government lawyers may, without consent of theorganization?s lawyer, communicate with any officer, employee, or director ofthe organization who is not a member of the control group. In all other mattersinvolving organizational clients, however, the protection of this Rule isextended to two additional groups of individuals: individuals whose acts mightbe imputed to the organization for the purpose of subjecting the organizationto civil or criminal liability and individuals whose statements might bebinding upon the organization. A lawyer permitted by this Rule to communicatewith an officer, employee, or director of an organization must abide by thelimitations set forth in paragraph (e).

[21] This Rule does prohibit communications with any person who isknown by the lawyer making the communication to be represented by a legalprofessional in the matter to which the communication relates. A person is"known" to be represented when the lawyer has actual knowledge of therepresentation. Knowledge is a question of fact to be resolved by reference tothe totality of the circumstances, including reference to any written notice ofthe representation. See Rule 1.0(f). Written notice to a lawyer is relevant,but not conclusive, on the issue of knowledge. Lawyers should ensure thatwritten notice of representation is distributed to all attorneys working on amatter.

[22] Paragraph (e) is intended to regulate a lawyer'scommunications with a represented person, which might otherwise be permittedunder the Rule, by prohibiting any lawyer from taking unfair advantage of theabsence of the represented person?s legal professional. The prohibitioncontained in paragraph (e) is limited to inquiries concerning privilegedcommunications and lawful defense strategies. The Rule does not prohibitinquiry into unlawful litigation strategies or communications involving, forexample, perjury or obstruction of justice.

[23] The prohibition of paragraph (e) against the communicatinglawyer?s negotiating with the represented person with respect to certain issuesdoes not apply if negotiations are authorized by law, rule or court order. Forexample, a court of competent jurisdiction could authorize a lawyer to engagein direct negotiations with a represented person. Government lawyers may engagein such negotiations if a represented person who has been arrested, charged ina criminal case, or named as a defendant in a civil law enforcement proceedinginitiates communications with the government lawyer and the communication isotherwise consistent with requirement of subparagraph (c)(4).

Effective May 1, 2021.