A professional conduct rule that may clog contract productivity

The inboxes of many corporate counsel are filled with contracts to be reviewed and negotiated. How efficiently those lawyers plow through the pile makes a big difference in their productivity. For this reason, when I read about Rule 4.2 of the Model Rules of Professional Conduct I thought of the overlap between productivity, management and professional ethics (See my posts of April 15, 2007 about the attorney-client privilege and lawyers who are officers and sign contracts; and Oct. 24, 2005 on other overlapping topics of substantive law and management.).

Rule 4.2 precludes an in-house lawyer from communicating about something with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer. I was surprised to read in the summary of an ACC webcast on ethical problems for in-house counsel that “the District of Columbia’s ethics committee recently opined that a lawyer may communicate with the corporate adversary’s in-house counsel even where the adversary is represented by outside counsel in the matter. (District of Columbia Bar Legal Ethics Comm. Op. 331, 10/05).” Thank goodness!

But when the other party to a potential contract is not a lawyer, aw when the person is a Contract Manager, may the in-house lawyer negotiate the contract with that non-lawyer. According to the ACC “The prudent course is to request consent from [the other company’s] legal department to negotiate the deal with its Contract Manager.” This adds delay, paperwork, and one more task to get done.

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