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.