MARYLAND STATE BAR ASSOCIATION, INC.

COMMITTEE ON ETHICS

ETHICS DOCKET NO. 2017-02

Rule 4.2 Communication with Person Represented by Counsel Guidance

The Committee understands that Rule 4.2 poses perplexing questions for many in the bar regarding who is protected by the Rule and under what circumstances a lawyer may contact an agent or employee of an organization who may have information about a matter. The Committee concluded that offering some guidance on the rule in the context of contacting constituents of organizations both governmental and private might be helpful.

ANALYSIS

Any ethics analysis regarding a lawyer communicating with a person, including an agent, officer, director, and/or employee of an organization, necessarily must begin with consideration of Rule 4.2 of the Maryland Rules of Professional Conduct. That Rule provides as follows:

Rule 4.2. Communication with Person Represented by Counsel.

(a) Except as provided in paragraph (c), in representing a client, a lawyer shall not communicate about the subject of the representation with a person who the lawyer knows is represented in the matter by another lawyer unless the lawyer has the consent of the other lawyer or is authorized by law or court order to do so.

(b) If the person represented by another lawyer is an organization, the prohibition extends to each of the organization’s (1) current officers, directors, and managing agents and (2) current agents or employees who supervise, direct, or regularly communicate with the organization’s lawyers concerning the matter or whose acts or omissions in the matter may bind the organization for civil or criminal liability. The lawyer may not communicate with a current agent or employee of the organization unless the lawyer first has made inquiry to ensure that the agent or employee is not an individual with whom communication is prohibited by this paragraph and has disclosed to the individual the lawyer’s identity and the fact that the lawyer represents a client who has an interest adverse to the organization.

(c) A lawyer may communicate with a government official about matters that are the subject of the representation if the government official has the authority to redress the grievances of the lawyer’s client and the lawyer first makes the disclosures specified in paragraph (b).

The policy behind this Rule is explained in the comments and in treatises and law review articles discussing the Rule. The language adopted by the states differs, so relying upon ethics opinions or court decisions from other states can be tricky, yet oflen helpful. Comment [1] makes clear that the Rule “contributes to the proper functioning of the legal system by protecting a person who has chosen to be represented by a lawyer… against possible overreaching by other lawyers. . . This comment, and the protections afforded by the Rule, recognize that nonlawyers may not appreciate fully the implications of inquiries to them by counsel for opposing parties and may not be aware that, by reason of responding to such inquiries, they may compromise the attorney-client privilege or create potential civil or criminal liability for an associated organization.

Despite this rather straightforward purpose, the Rule can give rise to various thorny questions in application. One of the foremost legal ethicists, Geoffrey Hazard – in an article in the Hastings Law Journal with Dana Remus Irwin, Toward a Revised 4.2 No-Contact Rule, 60 Hastings L.J. 797 (2009) discusses the overbreadth of the Rule and argues for changing it while describing a number of scenarios where the Rule is applied today and how the suggested changes might lead to what the authors argue yields a preferred result. The authors describe eight scenarios in which the Rule functions and how it functions and discuss the varied problems with each. Some of those scenarios illustrate the types of issues this Committee believes need to be clarified. In addition, as an additional resource, the Restatement of the Law Governing Lawyers, in Sections 100 and 101, discusses contact with governmental and organizational entities, as well as their current and former employees.

Although the Rule is designed to ensure protection of those represented by counsel, it is also clear from the Rule and the comments that Rule 4.2 operates differently when the organization is a government unit as constitutional rights under the First Amendment protect a person’s right to seek redress of grievances directly from the government and its officials. In that regard, Subsection (c) of Rule 4.2 specifically acknowledges that the lawyer may communicate with a governmental official about client grievances that the governmental official has the authority to redress provided certain disclosures are made. Comment [9J explains that, subject to the aforesaid disclosure, communications with governmental officials having authority to redress grievances is permissible without the prior consent of the lawyer representing the government, but does not permit a lawyer to bypass counsel representing the government on every issue that may arise in the course of disputes with the government. Rather, the paragraph provides lawyers with access to decision makers in the government with respect to genuine grievances, such as to present the view that the government’s basic policy position with respect to a dispute is faulty or that the government personnel are conducting themselves improperly with respect to aspects of the dispute. It does not provide direct access on routine disputes, such as ordinary discovery disputes or extensions of time.

Within these general guidelines and parameters set forth in the Rules of Professional Conduct are a whole range of potential circumstances that can arise in litigation, in anticipation of litigation, or otherwise as to the boundaries of the protections afforded under Rule 4.2.

APPLICABLE AUTHORITIES AND CASELAW

As a Committee, we recognize that we find ourselves hamstrung to respond to specific inquiries about whether the Rule applies as presented to us by parties in litigation or who are at odds over how the Rule applies. Part of this Committee’s reluctance to answer specific inquiries about conduct under Rule 4.2 stems from our recognition that issues concerning efforts by counsel for an adverse party to talk with employees or former employees of an entity or interview witnesses who may be employed by or formerly employed by an opposing party or organization are fraught with uncertainty and can only be resolved on a case by case factual basis. The Committee’s Guidelines make plain that it is not a fact finder.

To understand fully the Rule and its implications for those lawyers seeking to protect their clients and privileged information and as well as those lawyers seeking to develop facts and information as advocates in litigation, several key components of the Rule must be addressed.

At the outset, the Committee can comfortably conclude that the general counsel for an organization, either public or private, cannot assert that the Rule applies to all employees of the organization based solely upon their employment. At the same time, a lawyer seeking to interview an employee of a represented organization must carefully consider whether the employee is off limits under Rule 4.2. Employees expressly included within the Rule’s reach are “the organization’s (1) current officers, directors, and managing agents and (2) current agents or employees who supervise, direct, or regularly communicate with the organization’s lawyers concerning the matter or whose acts or omissions in the matter may bind the organization for civil or criminal liability.” The scope of an organization’s constituents included in the protections of Md. Rule 4.2 are paralleled, with some variation, in the Model Rule Comments and in the Restatement of the Law of Lawyering. Comment 9 to Model Rule 4.2 states: “In the case of a represented organization, this Rule prohibits communications with a constituent of the organization who supervises, directs or regularly consults with the organization’s lawyer concerning the matter or has authority to obligate the organization with respect to the matter or whose act or omission in connection with the matter may be imputed to the organization for purposes of civil or criminal liability.”

Restatement (Third) of the Law Governing Lawyers, Section 100 (2000) states that a represented person includes:

(2) a current employee or other agent of an organization represented by a lawyer:

  1. if the employee or other agent supervises, directs, or regularly consults with the lawyer concerning the matter or if the agent has power to compromise or settle the matter;
  2. if the acts or omissions of the employee or other agent maybe imputed to the organization for purposes of civil or criminal liability in the matter; or
  3. if a statement of the employee or other agent, under applicable rules of evidence, would have the effect of binding the organization with respect to proof of the matter

The ABA Standing Committee on Ethics and Professional Responsibility issued Formal Opinion 95-3 96, in which it discussed the scope of Rule 4.2 when dealing with an organization as the represented client:

When a corporation or other organization is known to be represented with respect to a particular matter, the bar applies only to communications with those employees who have managerial responsibility, those whose act or omission may be imputed to the organization, and those whose statements may constitute admissions by the organization with respect to the matter in question. Thus, a lawyer representing the organization cannot insulate all employees from contacts with opposing lawyers by asserting a blanket representation of the organization.

The Supreme Court of Ohio, as Board of Commissioners on Grievances and Discipline, issued Opinion 2005-3 (2005) and addressed the question: “Is it proper for counsel who represents an interest adverse to a corporation to communicate without consent of the corporation’s counsel with certain current and former employees of the corporation, when the corporate counsel asserts blanket representation of the corporation and all current and former employees?” The Ohio Supreme Court responded:

Corporate counsel’s assertion of blanket representation of the corporation and all its corporate employees is bluster. It is inappropriate. First, a unilateral declaration by a corporation’s counsel that he or she represents all current and former employees does not make it so. Second, such blanket representation of a corporation and all its current and former employees would in many instances be fraught with impermissible conflicts of interest for the corporate lawyer.

See also Terra International, Inc. v. Mississippi Chemical Corp., 913 F. Supp. 1306 (N.D. Ia. 1996), quoting Carter-Herman v. City of Philadelphia, 897 F. Supp. 899 (E.D. Pa. 1 995)(an organization cannot by declaration insulate its employees from contact as “an organization could thwart the purpose of Rule 4.2 simply by unilaterally pronouncing its representation of all of its employees.”).

“Proper application of the no-contact rule to a represented organization has been the source of much confusion and debate.” Toward a Revised 4.2 No-Contact Rule, 60 Hastings L.J. at 831. Hazard first recognizes that courts have rejected attempts by corporate counsel to insulate all employees from contact by opposing counsel. Id. at n. 213 (citing See, e.g., Harry A. v. Duncan, 330 F. Supp. 2d 1133, 1137-38 (D. Mont. 2004); Banks v. Office of Senate Sergeant-at-Arms, 222 F.R.D. 1, 6 (D.D.C. 2004); Michaels v. Woodland, 988 F. Supp. 468, 472 (D.N.J. 1997); ABA Comm. on Ethics and Prof’l Responsibility, Formal Op. 95-396 (1995)). Hazard explains that various factors “weigh in favor of a narrower scope of covered constituents” and among them is the heightened importance of informal fact-finding in an organizational context. Informal interviews with employees may be the only means for a party opposing a represented person to obtain key facts and information. Much information will be in the “exclusive control” of the organization and its employees, and may not be produced through formal discovery. Moreover, employees who would have offered prejudicial information in an informal private environment may be hesitant to do so in front of the corporation’s lawyer for fear of retaliation. Accordingly, as the New York Court of Appeals explained, “[tjhe broader the definition of ‘party’ in the interests of fairness to the corporation, the greater the cost in terms of foreclosing vital informal access to facts.” Id., at 832-33.1

As such, the Committee believes that an organization’s desire to protect against intrusions into matters protected by attorney client privilege must be balanced against the bedrock of a system that encourages open exchange of information in a search for truth. Hazard further notes that limiting informal discovery imposes additional burdens in the organizational context. By increasing the costs of litigation through formal discovery, it may preclude the possibility of suit for individual plaintiffs who often have comparatively fewer resources. And by precluding individual plaintiffs’ access to vital sources of information, it may discourage lawsuits, frustrating private litigation’s role as an “important means of controlling abuses of corporate power and restraining abuses of law.” Id., at 833- 34. This Committee’s recognition that such a balance exists is qualified by the clear understanding that the balance must also prevent opposing counsel from seeking privileged or confidential information.

Hazard also points out that the scope of the corporate constituents covered under Rule 4.2 should not be overbroad as it may not be in some corporate employees’ interests to be declared to be represented by corporate counsel and thus off limits. Id. at 805 (“A whistleblower within a represented organization has an interest in speaking with outside counsel without first gaining approval from the organizations lawyer.”) and 833 (“An employee’s interest may well diverge from those of the organization.”).

As set forth infra, counsel should consider the various factors identified in an effort to determine whether an employee is within the scope of Rule 4.2. The language of Maryland Rule 4.2 expressly and repeatedly refers only to the inclusion of “current” employees within its scope. Surely, under the general principle of statutory or Rule construction, the repeated use of “current” cannot be ignored. Indeed, Comment 7 to Model Rule 4.2 fairly parallels Md. Rule 4.2 regarding current employees who are covered constituents and then specifically makes plain that the scope of Model Rule 4.2 does not extend to former employees:

In the case of a represented organization, this Rule prohibits communications with a constituent of the organization who supervises, directs or regularly consults with the organization’s lawyers concerning the matter or has authority to obligate the organization with respect to the matter or whose act or omission in connection with the matter may be imputed to the organization for purposes of civil or criminal liability. Consent of the organization’s lawyer is not required for communication with a former constituent. If the former constituent of the organization is represented in the matter by his or her own counsel, the consent by that counsel to a communication will be sufficient for purposes of this Rule.” Comment 7 to Rule 4.2.

While Comment 7 to the Maryland Rules does not contain this express language, Maryland Rule 4.2 itself refers to “current employees”. Morever, Rule 4.4(b) and its comments provide further support for the limitation of Rule 4.2 to “current” constituents. In that regard, Rule 4.4(b) separately provides:

(b) In communicating with third persons, an attorney representing a client in a matter shall not seek information relating to the matter that the attorney knows or reasonably should know is protected from disclosure by statute or by an established evidentiaiy privilege, unless the protection has been waived. The attorney who receives information that is protected from disclosure shall (1) terminate the communication immediately and (2) give notice of the disclosure to any tribunal in which the matter is pending and to the person entitled to enforce the protection against disclosure.

In distinguishing current from former employees, the Maryland Court of Appeals explained in Comment 2 that “present or former organizational employees or agents may have information that is protected as a privileged attorney-client communication or as work product. An attorney may not knowingly seek to obtain confidential information from a person who has no authority to waive the privilege. Regarding current employees of a represented organization, see also Rule 4.2.”

The Court of Appeals tracked this alignment of Rule 4.2 with “current” employees and Rule 4.4 with “former” employees in Comment 6 to Rule 4.2: “Regarding communications with former employees, see Rule 4.4(b).”

Thus, when the Committee reads these Rules, comments and supporting authorities together, we conclude that the protections under Rule 4.2 apply only to current agents and employees and that Rule 4.4 provides guidance as to which former agents and employees may be off limits.

Maryland state courts have not addressed the issue, but several federal courts construing Maryland law and rules have. Noteworthy perhaps, is the fact that the court in Sharpe v. Leonard Stulman Enters. Ltd. Pshp. although acknowledging the discord among Maryland federal court opinions that have addressed the issue, concludes that the various opinions achieve consensus on one issue: i.e., that the Rule does not include former employees who do not possess confidential or privileged information or whose statements or actions cannot be imputed to their former employer:

On the Rule’s face and even with the aid of the official Comment, Rule 4.2 is at best unclear regarding its application to ex parte contact with former employees of a party organization. In the absence of applicable Maryland precedent addressing this issue, several members of this Court have considered the scope and application of this Rule in cases involving ex parte communication with former employees, reaching somewhat different results. See Plan Comm. v. Driggs, 217 B.R. 67 (D. Md. 1998) (Motz, C.J.); Davidson Supply Co., Inc. v. P.P.E., Inc., 986 F. Supp. 956 (D. Md. 1997) (Smalkin, J.); Zachair, Ltd. v. Driggs, 965 F. Supp. 741 (D. Md. 1997) (Davis, J.); Camden v. Maryland, 910 F. Supp. 1115 (D. Md. 1996) (Messitte, J.). To the extent that these cases disagree over the proper scope of the Rule, however, this Court need not resolve the conflict, because all of these cases agree that the Rule does not prohibit ex parte communication with former employees who do not possess confidential or privileged information, and whose statements or actions cannot be imputed to their former employer.

Sharpe v. Leonard Stulman Enters. Ltd. Pshp., 12 F. Supp. 2d 502, 504 (D. Md. 1998).

For additional judicial guidance on these questions, there are a series of cases decided by the United States District Court for the District of Maryland in which these issues have been examined and digested by various distinguished jurists and, in one instance, by a Magistrate Judge. These courts have reached different conclusions based upon the circumstances presented. In some cases, interrogation of ex-employees or existing employees was allowed, and, in others, actions taken to interview such former or existing employees resulted in sanctions including disqualification of counsel and/or exclusion of evidence. We draw your attention to the following cases including Sharpe:

Camden v. Maryland, 910 F. Supp. 1115 (D. Md. 1996) (Peter J. Messitte, J.)

Zachair, Ltd. v. Driggs, 965 F. Supp. 741 (D. Md. 1997) (Andre M. Davis, J.)

Ag Gro Servs. Co. ex rel. Ag Gro Servs. Co. v. Sophia Land Co., 8 F. Supp. 2d 495 ((D. Md. 1997) (Marvin J. Garbis, J.)

Davidson Supply Co. v. P.P.E., Inc., 986 F. Supp. 956 (D. Md. 1997) (Frederic N. Smalkin, J.)

Plan Comm. In the Driggs Reorganization Case v. Driggs, 217 B.R. 67 (D. Md. 1998) (J. Frederick Motz, J.)

Sharpe v. Leonard Stulman Enters, Ltd. Pshp., 12 F. Supp. 2d 502 (D. Md. 1998) (Benson Everett Legg, J.)

Collier v. Ram Partners, Inc., 159 F. Supp. 2d 889 (D. Md. 2001) (Andre M. Davis, J.)

Rogosin v. Mayor of Balt., 164 .F. Supp. 2d 684 (D. Md. 2001) (James K. Bredar, Magistrate Judge)

We note that the federal cases that applied Rule 4.2 to former constituents largely did so to protect information subject to the attorney client privilege, but Rule 4.4(b) independently prohibits an attorney from soliciting such information. Given the express language of the Rules and comments, we believe that the Court in Davidson Supply Co. v. P.P.E., Inc., 986 F. Supp. 956 (D. Md. 1997) properly declined to extend Rule 4.2 to former constituents and suggested such an extension “should be made by a duly promulgated amendment to the rule itself, rather than by the gloss of caselaw.” This analysis accurately reflects the opinion of this Committee.

Of these decisions, one that addresses a situation involving a governmental organization is the case Rogosin v. Mayor of Balt., 164 F. Supp. 2d 684 (D. Md. 2001) (Magistrate Judge James K. Bredar), in which Plaintiffs, who were alleging employment discrimination claims against their employer, the City of Baltimore, sought the Court’s permission to interview informally certain present employees of the City as they might have information relevant to their claims. Unstated in the request for relief (that is, informal interviews) was the premise that these witnesses could be reluctant to provide information in a supervised interview or one in which counsel for the City insisted on being present.

The Court, recognizing the conflicting results reached in the decisions cited above, ultimately denied the Motion for Leave to be permitted to conduct ex parte interviews. However, the Court also did not forbid Plaintiff’s counsel from conducting the interviews, leaving it to counsel to determine from the principles enunciated in the authorities cited above, whether one or more of those interviews would be appropriate. The Court left open the question of whether Rule 4.2 applied to former employees, but expressed its reluctance to issue what the Court considered to be an “advisory opinion” as follows:

“Moreover, if Rule 4.2 does apply to ex parte contacts with certain former employees, any number of factors may affect whether it forbids contact with a particular employee. It would be difficult for this Court to issue an opinion that takes into account every possible factor that may affect whether a former employee has such knowledge as to render contact inappropriate. Although it would also be difficult for lawyers to make this assessment as they consider whether to talk ex parte with a former employee of a party-opponent, it would be easier for them to do so because they, unlike the Court, would be aware of more specific facts.” Rogosin, 164 F. Supp. 2d at 686.

The Court, as guidance, also highlighted the following two principles that emerge from the conflicting opinions recited above:

  1. No judge of the United States District Court has held that Rule 4.2 bars exparte contact with all former employees; and
  2. Ex parte communication with a former employee that resulted in the lawyer obtaining confidential information or documents may result in sanctions regardless of whether Rule 4.2 is held to apply.

This second principle finds express support in Rule 4.4 (b), which prohibits a lawyer representing a client from seeking information from a third party that is protected from disclosure by statute or privilege. In Comment 2 to Rule 4.4, the Maryland Rules Committee made plain that this applied to former employees, and stated that Rule 4.2 applied to “current” employees. Again, support appears to exist for the position that the Maryland Court of Appeals contemplated that Rule 4.2 applied to “current” employees and that the protections of Rule 4.4 would cover all third parties, including “former” employees. Comment 2 to Rule 4.4.

Although the Court did not grant or deny Plaintiffs lawyer free access to existing or former employees of the City, the Court, in footnote 1, provided the following guidance:

“Obviously, most former employees of the City Law Department will possess information that is subject to the attorney-client privilege or is otherwise confidential by virtue of the fact that they act as the City’s legal counsel in a variety of matters. The prohibition on lawyers contacting former employees who have been extensively exposed to privileged information cannot be read so broadly as to bar a lawyer from conducting ex parte interviews with employees who have been exposed to privileged information about other matters, but have not been extensively exposed to privileged information about the case in which the lawyer is involved. Nevertheless, the lawyer conducting such interviews must also scrupulously avoid intruding upon privileges relating to other matters during the interview.” Rogosin, 164 F. Supp. 2d at 687.

Certainly, in regard to former employees, counsel would be well served to proceed cautiously given the lack of uniformity in the reported decisions with regard to whether and how Rules 4.2 and 4.4 apply to former employees.

In Toward a Revised 4.2 No-Contact Rule (Hazard, 2009), the authors view the concepts that need to be considered in order to evaluate whether Rule 4.2 applies to current or former employees as:

  1. The extent to which persons sought to be interviewed may have been privy to confidential communications with counsel;
  2. The extent to which the employee may have been personally and substantially involved in decisions that may have a bearing on positions one or the other side may take in the litigation;
  3. Whether the person is or is not a lawyer since one of the fundamental objectives of Rule 4.2 is to protect non-lawyers from inadvertently waiving the attorney-client privilege or other protections which may exist under the law2;
  4. Whether the person’s acts or omissions in the matter would bind the organization for civil or criminal liability;
  5. Whether there may be some other reason under the law where such inquiry is not only permitted, but encouraged; and
  6. Whether a government official has the authority to redress the grievances of the inquirer.

Thus, by the language of Rule 4.2 and the comments thereunder, a blanket prohibition that would preclude an adverse party or their counsel from communicating with any representative of an organization or governmental body under all circumstances, may be overbroad. Rule 3.4 applies to an organization’s lawyer who improperly prohibits contact with employees and former employees beyond the reach of Rule 4.2. Rule 3.4, provides that a lawyer shall not:

“…(f) request a person other than a client to refrain from voluntarily giving relevant information to another party unless:

  1. the person is a relative or an employee or other agent of a client; and
  2. the lawyer reasonably believes that the person’s interests will not be adversely affected by refraining from giving such information.”

Just as attorneys must proceed cautiously with approaching employees who may be covered by Rule 4.2, attorneys also need to proceed cautiously when considering the range of employees who are directed to refrain from contact with another attorney. In both of these roles, attorneys need to do the hard work and specific analysis to determine the scope of employees covered by the language of Rule 4.2(b)(2).

CONCLUSION

In sum, when you look at the language of Rule 4.2 in the context of the Comments and history of the Rule with an eye toward the specific prohibitions of Rule 3.4 and those in Rule 4.4 and the decisional case law, the following fundamental conclusions emerge:

  1. A determination as to whether access can properly be obtained to employees or former employees of an organization must be resolved on a case by case basis and cannot be ruled upon categorically without specification of who the employees are, what the party requesting is seeking, and the likelihood that such persons have access to confidential information that would thereby be compromised.
  2. Any effort to interview current or former employees of a represented organization must be undertaken carefully so as to avoid intrusion into what may be attorney-client protected information;
  3. Prudence warrants that a lawyer interrogating such people give appropriate warnings so as to ensure that the witness, whether a lay person or a lawyer, understands who the inquirer represents, the purpose of the inquiry and a warning so as to avoid intrusion into confidential information;
  4. While there may be no blanket prohibition against interviewing all present or former employees of an organization or governmental body, conclusive and uniformly applicable ground rules may be difficult to formulate in advance;
  5. In cases where an attorney has reason to believe that an employee of a represented organization might be covered by the no-contact rule, that attorney would be well advised to either conduct discovery or communicate with the opposing counsel concerning the employee’s status before contacting the employee;
  6. Where questions arise as to whether an employee is within the scope of Rule 4.2, the inquiring lawyer may seek permission from the Court or other decision making body before conducting any such interviews; and
  7. If an organization is actually affording a defense to an employee or former employee, based upon an obligation to defend or indemnify, such as under the State or the Local Government Tort Claims Acts, then the employee or former employee may be a represented party apart from the organization.

In addition to these principles, we also highlight several additional principles set forth in the Comments to Rule 4.2:

Comment 2 makes plain that the Rule does not prohibit communication with a represented person, or employee or agent of that person, on matters outside the representation.

Comment 5 makes plain that the Rule applies to any person whether or not a party to a formal proceeding, contract or negotiation, who is represented by counsel with regard to a matter. And, the Rule applies even though the represented person initiates or consents to the communication. A lawyer must immediately terminate the communication if, after commencing the communication, the lawyer learns that the person is represented.

Comment 6 explains: “If an agent or employee of a represented person that is an organization is represented in a matter by his or her own counsel, the consent of that counsel to a communication will be sufficient for purposes of this Rule.”

We hope that this information is helpful to you and to other members of the Bar.

1. Hazard also explains that informal factfinding is “an alternative to formal discovery that provides several advantages to adverse parties and the legal system as a whole” as it “limits financial burdens placed on parties and on courts. It allows lawyers to fulfill their Rule 11 duty to substantiate claims prior to filing suit when formal discovery has not yet become available. And it may produce more relevant and useful information, as witnesses may speak more freely in an informal ex parte interview than in the more intimidating atmosphere of a formal deposition. Moreover, it affords the investigating lawyer confidentiality in developing a theory of the case and producing attorney work product.” Id. at 805. while New York’s Rule addresses “parties” (which implies litigation), Maryland’s Rule applies to represented “persons” and the Comments make plain that its application is not limited to litigation.

2.The Committee recently discussed the application of Rule 4.2 to an attorney party opponent in Opinion 2016-06.