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RULE 19-304.2. COMMUNICATIONS WITH PERSONS REPRESENTED BY AN ATTORNEY (4.2)

West's Annotated Code of MarylandMaryland Rules

West's Annotated Code of Maryland
Maryland Rules
Title 19. Attorneys
Chapter 300. Maryland Attorneys' Rules of Professional Conduct
Transactions with Persons Other than Clients [Rules 19-304.1 to 19-304.4]
MD Rules Attorneys, Rule 19-304.2
RULE 19-304.2. COMMUNICATIONS WITH PERSONS REPRESENTED BY AN ATTORNEY (4.2)
(a) Except as provided in section (c) of this Rule, in representing a client, an attorney shall not communicate about the subject of the representation with a person who the attorney knows is represented in the matter by another attorney unless the attorney has the consent of the other attorney or is authorized by law or court order to do so.
(b) If the person represented by another attorney is an organization, the prohibition extends to each of the organization's (1) current officers, directors, and managing agents and (2) current agents or employees who supervise, direct, or regularly communicate with the organization's attorneys concerning the matter or whose acts or omissions in the matter may bind the organization for civil or criminal liability. The attorney may not communicate with a current agent or employee of the organization unless the attorney first has made inquiry to ensure that the agent or employee is not an individual with whom communication is prohibited by this section and has disclosed to the individual the attorney's identity and the fact that the attorney represents a client who has an interest adverse to the organization.
(c) An attorney may communicate with a government official about matters that are the subject of the representation if the government official has the authority to redress the grievances of the attorney's client and the attorney first makes the disclosures specified in section (b) of this Rule.
Committee note: The use of the word “person” for “party” in section (a) of this Rule is not intended to enlarge or restrict the extent of permissible law enforcement activities of government attorneys under applicable judicial precedent.
COMMENT
[1] This Rule contributes to the proper functioning of the legal system by protecting a person who has chosen to be represented by an attorney in a matter against possible overreaching by other attorneys who are participating in the matter, interference by those attorneys with the attorney-client relationship, and the uncounseled disclosure of information relating to the representation.
[2] This Rule does not prohibit communication with a person, or an employee or agent of the person, concerning matters outside the representation. For example, the existence of a controversy between two organizations does not prohibit an attorney for either from communicating with non-attorney representatives of the other regarding a separate matter. Also, parties to a matter may communicate directly with each other and an attorney having independent justification or legal authorization for communicating with a represented person is permitted to do so.
[3] Communications authorized by law include communications in the course of investigative activities of attorneys representing governmental entities, directly or through investigative agents, before the commencement of criminal or civil enforcement proceedings if there is applicable judicial precedent holding either that the activity is permissible or that the Rule does not apply to the activity. The term “civil enforcement proceedings” includes administrative enforcement proceedings. Except to the extent applicable judicial precedent holds otherwise, a government attorney who communicates with a represented criminal defendant must comply with this Rule.
[4] An attorney who is uncertain whether a communication with a represented person is permissible may seek a court order in exceptional circumstances. For example, when a represented criminal defendant expresses a desire to speak to the prosecutor without the knowledge of the defendant's attorney, the prosecutor may seek a court order appointing substitute an attorney to represent the defendant with respect to the communication.
[5] This Rule applies to communications with any person, whether or not a party to a formal adjudicative proceeding, contract, or negotiation, who is represented by an attorney concerning the matter to which the communication relates. The Rule applies even though the represented person initiates or consents to the communication. An attorney must immediately terminate communication with a person if, after commencing communication, the attorney learns that the person is one with whom communication is not permitted by this Rule.
[6] If an agent or employee of a represented person that is an organization is represented in the matter by his or her own attorney, the consent by that attorney to a communication will be sufficient for purposes of this Rule. Compare Rule 19-303.4 (f) (3.4). In communicating with a current agent or employee of an organization, an attorney must not seek to obtain information that the attorney knows or reasonably should know is subject to an evidentiary or other privilege of the organization. Regarding communications with former employees, see Rule 19-304.4 (b) (4.4).
[7] The prohibition on communications with a represented person applies only if the attorney has actual knowledge that the person in fact is represented in the matter to be discussed. Actual knowledge may be inferred from the circumstances. The attorney cannot evade the requirement of obtaining the consent of the opposing attorney by ignoring the obvious.
[8] Rule 19-304.3 (4.3) applies to a communication by an attorney with a person not known to be represented by an attorney.
[9] Section (c) of this Rule recognizes that special considerations come into play when an attorney is seeking to redress grievances involving the government. Subject to certain conditions, it permits communications with those in government having the authority to redress the grievances (but not with any other government personnel) without the prior consent of the attorney representing the government in the matter. Section (c) of this Rule does not, however, permit an attorney to bypass attorneys representing the government on every issue that may arise in the course of disputes with the government. Rather, the section provides attorneys with access to decision makers in government with respect to genuine grievances, such as to present the view that the government's basic policy position with respect to a dispute is faulty or that government personnel are conducting themselves improperly with respect to aspects of the dispute. It does not provide direct access on routine disputes, such as ordinary discovery disputes or extensions of time.
Model Rules Comparison: This Rule substantially retains Maryland language as it existed prior to the Ethics 2000 Amendments to the ABA Model Rules of Professional Conduct except for dividing Rule 19-304.2 (b) (4.2) into Rule 19-304.2 (b) and (c) (4.2) with no change in wording.

Credits

[Adopted eff. July 1, 2016.]
MD R Attorneys, Rule 19-304.2, MD R ATTORNEYS Rule 19-304.2
Current with amendments received through June 15, 2020.
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