MPRE Communication 3 — Questions and Answers
Question 1: An attorney represents the plaintiff in a contract dispute. She learns that the defendant is now represented by counsel. She calls the defendant directly to discuss a settlement without informing defendant's counsel. This conduct is:
- Permissible if the defendant voluntarily speaks with her
- Permissible if the plaintiff instructed her to call
- Impermissible under the no-contact rule of Rule 4.2 (Correct answer)
- Permissible because settlement discussions are not 'communications about the matter'
Correct answer: Impermissible under the no-contact rule of Rule 4.2
Rule 4.2 prohibits a lawyer from communicating about the subject of the representation with a person the lawyer knows to be represented by another lawyer without that lawyer's consent.
Question 2: A lawyer for the plaintiff wants to interview a current employee of the defendant corporation. The employee is in the accounting department and had no role in the transaction at issue. The defendant is represented by counsel. Which statement is correct?
- The lawyer may contact the employee without consent because the employee is not a party (Correct answer)
- The lawyer needs consent of defendant's counsel because the employee's statements could bind the corporation
- The lawyer may contact the employee only if the employee initiates the conversation
- Rule 4.2 only applies to the defendant's officers and directors, not rank-and-file employees
Correct answer: The lawyer may contact the employee without consent because the employee is not a party
Under Rule 4.2 and its Comment 7, the no-contact rule for organizational employees applies only to those who supervise, direct, or regularly consult with the organization's lawyer, or whose acts or omissions may be imputed to the organization — not all employees.
Question 3: An attorney representing a criminal defendant learns the victim is represented by a civil attorney for a related civil claim. The prosecutor's office asks the defense attorney to speak with the victim about the criminal case. The defense attorney may:
- Speak with the victim because the civil representation is unrelated to the criminal matter
- Speak with the victim only with the civil attorney's consent (Correct answer)
- Never speak with the victim under any circumstances
- Speak with the victim because criminal defendants have a constitutional right to confront accusers
Correct answer: Speak with the victim only with the civil attorney's consent
Rule 4.2 requires consent of the person's counsel when that person is represented in the matter, even if the representation is in a related rather than identical proceeding.
Question 4: A government attorney is investigating a corporation for environmental violations. The corporation is represented by outside counsel. The government attorney wants to issue administrative subpoenas to current employees. Under Rule 4.2, this is:
- Prohibited because the corporation is represented
- Permitted because government investigative subpoenas are authorized by law (Correct answer)
- Permitted only if the government attorney gets outside counsel's consent
- Prohibited unless a judge orders the subpoenas
Correct answer: Permitted because government investigative subpoenas are authorized by law
Rule 4.2 contains an exception for communications 'authorized by law,' which includes government lawyers acting under lawful authority such as issuing investigative subpoenas.
Question 5: Defense counsel in a civil case learns that the opposing party's attorney has withdrawn and no new counsel has appeared yet. Defense counsel wants to communicate directly with the opposing party about extending a discovery deadline. Under Rule 4.2, she may:
- Not communicate without prior court approval even though counsel withdrew
- Communicate directly because the party is currently unrepresented (Correct answer)
- Only communicate through the court in writing
- Communicate directly but must advise the party to obtain new counsel first
Correct answer: Communicate directly because the party is currently unrepresented
Rule 4.2 prohibits contact with a represented person; once the attorney-client relationship ends and no new counsel appears, the party is unrepresented and direct contact is permitted (subject to Rule 4.3).
Question 6: An attorney receives a call from a represented adverse party who says 'I fired my lawyer and want to talk to you directly about settling.' The attorney knows the representation may not have formally ended. The attorney should:
- Proceed with the settlement discussion because the party initiated contact
- Verify that the prior representation has actually terminated before communicating about the substance (Correct answer)
- Refuse all contact since the person was recently represented
- Report the call to the prior attorney and proceed with settlement talks
Correct answer: Verify that the prior representation has actually terminated before communicating about the substance
A lawyer who 'knows' a person is represented cannot rely on the opposing party's unverified claim that representation has ended; the attorney should confirm termination before substantive communication.
Question 7: A plaintiff's attorney sends a demand letter directly to the CEO of a defendant corporation, which is represented by counsel. The letter summarizes the plaintiff's legal claims and demands settlement. This communication is:
- Permitted as long as the letter does not ask the CEO to forego representation
- Impermissible because the corporation is represented and the CEO is a high-level decision-maker (Correct answer)
- Permitted because demand letters are standard pre-suit communications
- Impermissible only if the letter contains legal advice to the CEO personally
Correct answer: Impermissible because the corporation is represented and the CEO is a high-level decision-maker
Once the organization is represented, Rule 4.2 prohibits communicating with high-level employees whose statements bind the organization, including the CEO, without opposing counsel's consent.
MPRE Communication 3
An attorney represents the plaintiff in a contract dispute.
She learns that the defendant is now represented by counsel.
She calls the defendant directly to discuss a settlement without informing defendant's counsel.
This conduct is: