Summary: 4) Protecting The Ac-R Against Improper Invasion

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• 1 4) Protecting the AC-R Against Improper Invasion

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• Which "persons" are covered by 4.2 [anti-contact rule]?

  
  The rule applies to "any person who is represented by counsel concerning the matter to which the communication relates." 4.2, CMT 2. Although not explicitly stated, the rule also applies to persons who are aligned on the same side of a lawsuit as L's C -i.e., co-defendants

• Identify ABA R: Definition of "know," "knowledge," etc

  1.0(f).

• Who may waive the anti-contact R [4.2]

  A C cannot waive the anti-contact rule. Only L has the power to consent to direct contact between his C and opposing counsel. The anti-contact rule applies even if the represented C initiates or consents to the communication. 4.2, CMT 3

• Anti-Contact Rule [4.2] and Directed Communications

  The Anti-Contact rule also applies to directed communications using 3rd parties. If L is prohibited from talking to a represented person, then L's agents are, too. SEE 5.3(c).

• Issue spot: 4.2 and Directed communications

  Where L himself does not communicate with a represented W, but instructs another person to make contact (i.e., paralegals, private investigators)

• Cans Cs independently contact their opposing Cs? Or does it violate 4.2?

  The parties (Cs) have the right to deal directly w/ each other, and L does not violate the anti-contact rule by "advising a C concerning a communication that the C is legally entitled to make." 4.2, CMT 2.

• Name 3 available remedies where a L violates the anti-contact rule

  1. discipline by state bar committee 
  2. Disqualification 
  3. Preclusive sanctions (prohibit offending L from presenting evidence at trial that was obtained through contact w/ represented persons in violation of 4.2). 

• Where an entity is the C, name the 3 tests for determining which corporate employees are within the protective scope of the anti-contact rule.

  1. Control Group. 
  2. Niesig 
  3. Restatement 

• Test 1) Control Group. Articulated:

  Anti-contact rule covers only high-level corporate agents who are responsible for directing the entity's actions.

• Where can the Nieisig test be found in the ABA rules?

  4.2, CMT 7