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Hastings Law Journal

Abstract

Model Rule of Professional Conduct 4.2, in effect in substantially similar form in all U.S. jurisdictions, generally forbids a lawyer from contacting a person represented by another lawyer unless that lawyer consents or the contact is "authorized by law." Our thesis is that as conceptualized and applied, this Rule is overbroad and ambiguous in important respects. After illustrating and explaining these shortcomings, we propose reform to Rule 4.2 to better implement its intended purpose. Specifically, we propose modifications to the text of the Rule that: (i) clarify the meaning of the "authorized by law" exception, (2) articulate new exceptions to avoid unjust applications, (3) revise the test for application of the Rule in the organizational context, and (4) offer guidelines for communications that occur under any of the Rule's exceptions. We then propose modifications to the Rule's comments that explain and elaborate on these modifications. Together, our proposed changes aim to implement Rule 4.2'S proper purpose-protecting the lawyer client relationship, while acknowledging and balancing competing duties and interests.

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