Virginia ethics opinion on communicating with a person who is represented by counsel

On January 9, 2020, the Supreme Court of Virginia approved a new formal ethics opinion to clarify the scope of Rule 4.2, which regulates the ability of lawyers to communicate directly with people who are represented by counsel.   You can read the full opinion here, but here are some of the highlights.

-- The rule applies only if the communication is about the subject of the representation in the same matter.

-- The rule applies only if the lawyer knows that the person is represented by counsel.

-- Represented persons may communicate directly with each other regarding the subject of the representation, but the lawyer may not use the client to circumvent Rule 4.2.

-- A lawyer may not use an investigator or third party to communicate directly with a represented person.

-- Ex parte communications are permitted with employees of a represented organization unless the employee is in the “control group” or is the “alter ego” of the represented organization.

-- The rule does not apply to communications with former employees of a represented organization.

-- The fact that an organization has in house or general counsel does not prohibit another lawyer from communicating directly with constituents of the organization, and the fact that an organization has outside counsel in a particular matter does not prohibit another lawyer from communicating directly with in-house counsel for the organization.

-- Plaintiff’s counsel generally may communicate directly with an insurance company’s employee/adjuster after the insurance company has assigned the case to defense counsel.