Consent and Waiver

Consent and Waiver

Rule 4.2 ends with a release. The bar applies “unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order.”¹ Three routes lead around the prohibition, and this section takes the first, consent. The text gives the power to consent to “the other lawyer,” the lawyer who represents the person in the matter, and to no one else.

The word consent causes trouble because it has opposite effects depending on who speaks. When the person’s lawyer consents, the bar lifts. When the person consents, nothing changes, although the person is the one the rule protects. The first subsection explains what counsel’s consent does and how far it reaches. The second explains why the person’s own agreement counts for nothing.

Consent of Opposing Counsel

The release clause names the one actor who can lift the bar: the lawyer who represents the person in the matter.² Counsel holds that power because the rule protects the relationship between counsel and client. It keeps another lawyer from interfering with that relationship, guards against inadvertent or uncounseled disclosure by a layperson whose lawyer is absent, and prevents the contacting lawyer from obtaining an admission.³ When the lawyer best placed to watch for those dangers agrees to a contact, the right person has weighed them. Only that lawyer may waive the bar.⁴

The text ties both the representation and the consent to the matter. The person must be represented “by another lawyer in the matter,” and the consent must come from “the other lawyer.”⁵ A lawyer who handles unrelated business for the person is therefore not the lawyer whose permission the rule asks for.

Consent reaches the contact counsel approved and no further, because the clause excuses a communication only when the contacting lawyer “has the consent” of the other lawyer.⁶ Permission to receive documents directly from a company, for example, supplies consent for a handover and for the few words a handover requires. It supplies none for a discussion of the dispute.

The lawyer who holds a limited permission carries the burden of staying inside it. When the scope is unclear, the lawyer should ask counsel before speaking, and when a conversation drifts past the approved subject, the lawyer must stop. The represented person cannot stretch the permission by offering to say more, because the person has no power to waive.⁷ The rule asks whether the contacting lawyer “has the consent of the other lawyer,” and the person’s assurance that counsel approved does not answer that question.⁸

No Waiver by the Client

The release clause gives the power to consent to “the other lawyer” and gives the person contacted none. Comment 3 states the consequence: “[t]he Rule applies even though the represented person initiates or consents to the communication.”¹¹ The person is the one the rule protects, yet only the person’s lawyer can waive it.¹² Counsel’s consent lifts the bar. The person’s consent leaves it where it was.

A lawyer therefore cannot treat the other person’s wishes as permission. In Professor Carl Pierce’s words, Comment 3 “provides a useful warning to lawyers that they must silence the represented person who calls them no matter how badly that person wants to talk.”¹³ A fact pattern in which the other person says the communication is fine, but the lawyer lacks the consent of that person’s lawyer, tests this point directly.¹⁴

Only the source of the permission differs between the two versions, and it decides the result. In the first, the speaker is the person the rule protects, whose agreement carries no weight. In the second, the speaker is the lawyer the rule designates. The first version also shows what triggers the duty: the bar applies when the lawyer “has actual knowledge of the fact of the representation,” as Comment 8 puts it.¹⁵

The person’s agreement counts for nothing because the rule answers an imbalance. It exists to protect the represented person from “the supposed imbalance of legal skill and acumen between the lawyer and the party litigant.”¹⁶ A trained adversary knows how to make a request sound harmless, and a layperson may learn only after the conversation that a casual answer was an admission. If the person’s yes could lift the bar, the lawyer the rule restrains would need only to ask the protected person for permission. The rule closes that door twice. “[T]he ethical responsibility rests with the attorney and not the layman,” and a purported consent extracted by the communicating lawyer is void.¹⁷

Syester v. Banta shows how persuadable a layperson can be, although it is a fraud case and decides nothing under Rule 4.2. The plaintiff there was, in the court’s words, “a lonely and elderly widow who fell for the blandishments and flattery of those who saw some ‘easy money’ available,” and by the defendants’ own exhibit she paid more than $29,000 for dancing lessons.¹⁸

The rule is “paternalistic” in nature. It overrides the person’s own choice for the person’s protection and applies with full force even when the person purports to consent.¹⁹ The cost is plain, since an adult who truly wants to talk is told no. The rule accepts that cost because its protective purpose “can be achieved only by insisting that the represented person’s lawyer must be the sole source for any legitimate consent.”²⁰ The person is not left without recourse, because the person can ask counsel to give the consent that only counsel can give.

A lawyer who proceeds on the person’s say-so carries the risk alone. Professional discipline is possible. A common judicial response is to disqualify the offending lawyer and the lawyer’s entire firm from continuing to represent their own client in the matter, and an agreement negotiated directly with a represented person, without that person’s lawyer present or permission given, may be voided.²¹ The section on consequences develops these sanctions.

Constitutional decisions about questioning defendants who have counsel form a separate body of law, and Rule 4.2 should not be read through them. Montejo v. Louisiana belongs to that body. The Court there overruled Jackson, and the dissent charged the majority with acting “on its own initiative” to correct a “theoretical and doctrinal” problem of its own imagining.²² Rule 4.2 is a different instrument. It opens with “a lawyer shall not,” it binds lawyers, and under Comment 3 the represented person’s initiative gives the lawyer no defense.²³