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87 Tul. L. Rev. 1197 (2012-2013)

handle is hein.journals/tulr87 and id is 1263 raw text is: Beyond the No-Contact Rule: Ex Parte Contact by Lawyers with Nonclients George M. Cohen* The ethics rules governig lawyers include a number ofrules banning contact between lawyers and nonclien& These no-contact rules are rdrly studied as a group. This Article exarmnes and compars four no-contact provisions contained in the ethics rules. Although protectig vulnerable nonclients from lawyer overaching plays an important role in justifymg these rules, the rules also often aim to protect absent lawyers or clients as much as the contacted parties. his altemative purpose may better explai some featuirs ofthe no-contactrules. I. INTRODUCTION...... ....................... 1197 II. THE GENERAL NO-CONTACT RULE: MODEL RULE 4.2............ 1199 III. THE EXPERT WITNESS No-CONTACT RULE: MODEL RULE 3.4(C)................................. 209 IV THE TRIBUNAL NO-CONTACT RULE: MODEL RULE 3.5...........1221 V THE POTENTIAL CLIENT No-CONTACT RULE: MODEL RULE 7.3................................... 1236 VI. CONCLUSION ............................. ...... 1243 I. INTRODUCTION Legal ethics rules cover a variety of topics and, like all other legal subjects, can be organized in a variety of ways. The American Bar Association's (ABA) Model Rules of Professional Conduct divide the ethics rules governing lawyers into eight categories,' which focus * 0 2013 George M. Cohen. Brokaw Professor of Corporate Law, University of Virginia School of Law. An earlier version of this Article was presented at the Tulane Admiralty Law Institute and benefitted from the comments of the participants. Some of the topics in this Article are topics on which I have been asked to give ethics opinions as a paid consultant and as a potential witness in ongoing litigation, and some of the research was done in the course of that work. I cannot reveal the matter because of confidentiality obligations, but I have not been asked to write this Article by the law firm I am consulting with nor its client and am not being paid to write it. This Article will not address the specific factual situations on which I have given opinions but will generally discuss some of the legal issues addressed in those opinions, as well as rules, cases, and published ethics opinions addressed in those opinions. 1. The categories are Client-Lawyer Relationship, Counselor, Advocate, Transactions with Persons other than Clients, Firms and Associations, Public Service, Information about Legal Services, and Maintaining the Integrity of the Profession. MODEL RULES OF PROF'L CONDUCT (2012). 1197

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