1-6
7-12
13-18
19-24
25-30
31-36
37-42
43-48
49-54
55-60
61-66
67-72
73-78
79-84
85-90
91-96
97-102
103-108
109-114
115-120
121-126
127-132
133-138
139-144
145-150
151-156
157-162
163-168
169-174
175-180
181-186
187-192
193-198
199-204
205-210
211-216
217-222
223-228
229-231
grievances.
[7] By virtue of its exemption of communications authorized by law, this Rule permits a
prosecutor or a government lawyer engaged in a criminal or civil law enforcement investigation to
communicate with or direct investigative agents to communicate with a represented person prior to
the commencement of a criminal or civil law enforcement proceeding against the represented
person. A civil law enforcement investigation is one conducted under the government’s police or
regulatory power to enforce the law. Once a represented person has been arrested, indicted, charged,
or named as a defendant in a criminal or civil law enforcement proceeding, however, prosecutors
and government lawyers must comply with this Rule. A represented person’s waiver of the
constitutional right to counsel does not exempt the prosecutor from the duty to comply with this
Rule.
[8] In the event the person with whom the lawyer communicates is not known to be
represented by counsel in the matter, the lawyer's communications are subject to Rule 4.3.
See Rule 1.0(f)
The Proposed Rule differs from DR 7-104(A)(1) to the extent that DR 7-104(A)(1) only
applies to communications with represented “parties.”This makes clear that the Rule applies prior
to institution of formal civil or criminal proceedings to which persons become parties. There are no
counterparts to the Comments in the Ethical Considerations, but Comment [3] is intended to be
consistent with Formal Ethics Opinions 83-F-46, 46(a), and 46(b). This Proposed Rule is also
consistent with the decision in Monceret v. Board of Professional Responsibility, 29 S.W.3d 455
(Tenn. 2000).
The text of the Rule is identical to ABA Model Rule 4.2. There is no counterpart to
Comment [1]. Comments [3] and [4] differ significantly from the Model Rule Comment that
specifies how the Rule applies to organizational clients. There are no counterparts in the Model
Rule to Comments [6] and [7].
In the Preliminary Draft, Proposed Rule 4.2 applied to represented "persons" in civil
matters and represented "parties" in criminal matters. The purpose of the differentiation between
civil and criminal matters was to permit prosecutors, in connection with law enforcement
investigations, to communicate directly with a represented person prior to arrest or indictment. The
Proposed Rule is now identical to the ABA Model Rule, and the issue of the application of the rule
to prosecutors is treated in new Comments [6] and [7], with the same substantive result.
In responding to concerns expressed by Tennessee prosecutors about this Proposed Rule,
the Committee amended the language of the first sentence of Comment [7] to clarify that the Rule
prosecutors is "authorized by law" under existing Tennessee ethics rules and decisional law. See,
e.g., State v. Mosher, 755 S.W.2d 464 (Tenn. Crim. App.), appeal denied(Tenn. 1988).
The Committee believes and intends that the adoption of the Proposed Rule would not
change the substance of the current Tennessee ethics rule or decisional law on this point.
Comment [3] in the Preliminary Draft prohibited communication with a corporate
employees whose “act or omission in the matter may be imputed to the organization for purposes
of civil or criminal liability or whose statement may constitute an admission on behalf of the
organization. These references have been deleted, so that the Comment will be consistent with the
“control group” test set forth in Formal Ethics Opinions 83-F-46, 46(a), and 46(b).
Made
1. In response to a Comment from the United States Attorneys, the Committee has added a
reference to “a court order” as a source of authorization by law for a communication with a
represented person.
2. The Board of Professional Responsibility has asked the Court to add a new Paragraph
(b) that restricts communications with government officials who are represented in their official
capacity by a government lawyer. The Committee does not support this proposal. The Committee
believes that there should be a uniform ethics rule applicable to all lawyers, and that the only
exception should be for communications authorized by law. As noted in Comment [6], the
Committee believes that the issue the Board would address by amending the ethics rule should be
resolved as a matter of other law, in particular by reference to the constitutional right to petition for
redress of grievances. Indeed, the Committee is concerned that the restrictions that the Board would
impose on direct communication with government officials might be inconsistent with the
constitutional right to petition.
3. The Board of Professional Responsibility has also asked the Court to modify Comment
[3] to specifically incorporate into the Comment the control group test articulated in Formal Ethics
Opinions 83-F-46(a) and 83-F-46(b). Apart from the inappropriateness of specifically citing
Formal Ethics Opinions in the Comment, the Committee believes that its formulation of the control
group test is consistent with the Formal Ethics Opinions, but also more precisely delineates the
agents or employees who are included. In addition to specifying members of the governing board,
officers, and managerial agents as management or administrative level employees, the Committee’s
draft also clarifies that the control group includes an agent or employee who supervises or directs
the organization’s lawyer concerning the matter, has authority to contractually obligate the
organization with respect to the matter, or otherwise participates substantially in the determination of
the organization’s position in the matter. This latter clarification is consistent with the formulation
of the control group test in the American Law Institute’s Restatement of the Law Governing
Lawyers.
4. The United States Attorneys have asked that the first sentence of Comment [7] be
incorporated into the Rule text. The Committee believes that it is both inappropriate and
unnecessary to include in the Rule text this particular example of a communication authorized by
law. The Rule makes it clear that a communication that otherwise would be prohibited without
consent of a represented person’s lawyer is permitted if the communication is authorized by other
law, and Comment [6] clearly explains that the communications about which the United States
were deleted. The Committee believes that Comment [6] makes the point with sufficient force that
modification of the rule text is not needed. The Tennessee District Attorneys General Conference
supports the formulation presented by the Committee.
5. The United States Attorneys have also asked to Court to delete the last sentence of
Comment[7] that states: “A represented person’s waiver of the constitutional right to counsel
does not exempt the prosecutor from the duty to comply with this Rule.”The Committee opposes
this proposal because, as indicated by Comment [1], Rule 4.2 is designed to protect not only the
rights of the represented person, but also to protect the proper functioning of the legal system. This
is why the protections of Rule 4.2, unlike the constitutional right to counsel,cannot be waived by
the client without the consent of the client’s lawyer. Unless the client discharges the lawyer, Rule
4.2 remains applicable and bars communication without the consent of the lawyer. The client’s
consent, as evidenced by the waiver of the right to counsel, is of no effect.
PROPOSED RULE 4.3
DEALING WITH UNREPRESENTED PERSON
state or imply that the lawyer is disinterested. When the lawyer knows or reasonably should know
that the unrepresented person misunderstands the lawyer's role in the matter, the lawyer shall make
reasonable efforts to correct the misunderstanding. A
Thelawyer shall not rendergivelegal advice to
theanunrepresented person,other than the advice to obtainsecurecounsel, if the lawyer knows or
reasonably should know that the interests of such a person are or have a reasonable possibility of
being in conflict with the interests of the client.
[1] An unrepresented person, particularly one not experienced in dealing with legal matters,
might assume that a lawyer is disinterested in loyalties or is a disinterested authority on the law even
when the lawyer represents a client. The lawyer is not allowed to cultivate such an assumption and
In order to avoid a misunderstanding, a lawyer will typically need to
identify the lawyer’s client and, where necessary, explain that the client has interests opposed to
those of the unrepresented person. For misunderstandings that sometimes arise when a lawyer for
an organization deals with an unrepresented constituent, see Rule 1.13(d).
[2]The Rule distinguishes between situations involving unrepresented persons whose
interests may be adverse to those of the lawyer’s client and those in which the person’s interests are
See Rule 1.0(f)
“Reasonable”See Rule 1.0(i)
“Reasonably Should Know”See Rule 1.0(k)
There is no counterpart in the Disciplinary Rules to the first two sentences. The prohibition
against rendering legal advice is identical to that currently contained in DR 7-104(A)(2).
The initial portion of proposed rule is identical to ABA Model Rule 4.3, but adds a
prohibition against rendering legal advice to the unrepresented person.
Made
The Committee concurs with the recommendation of the Board of Professional
Responsibility that the limitation against rendering advice to an unrepresented person be limited to
situations in which there is a conflict of interest between the lawyer’s client and the unrepresented
person. As revised, this Rule will be identical to Rule 4.3 as proposed to the ABA House of
Delegates by the Ethics 2000 Commission. In place of the Comment proposed by the Board,
however, the Committee recommends adoption of the new Comment to Rule 4.3 proposed by the
Ethics 2000 Commission. The Committee believes that the Ethics 2000 Comment provides more
useful guidance about the circumstances that affect the propriety of a lawyer providing legal advice
to an unrepresented person.
PROPOSED RULE 4.4
RESPECT FOR RIGHTS OF THIRD PERSONS
third person or knowingly use methods of obtaining evidence that violate the legal rights of
such a person; or
charge, for the purpose of obtaining an advantage in a civil matter.
Responsibility to a client requires a lawyer to subordinate the interests of others to those of
the client, but that responsibility does not imply that a lawyer may disregard the rights of third
persons. It is impractical to catalogue all such rights, but they include legal restrictions on methods
of obtaining evidence from third persons.For example, a lawyer may not secretly record a
specifically prohibiting such recording. Otherwise, this Rule does not prohibit secret recording so
long as the lawyer has a substantial purpose other than to embarrass or burden the persons being
recorded. It would be a violation of Rule 4.1 or Rule 8.4(c), however, if the lawyer stated falsely or
affirmatively misled another to believe that a conversation or an activity was not being recorded. By
itself, however, secret taping does not violate either Rule 8.4(c) (prohibition against dishonest or
deceitful conduct) or Rule 8.4(d) (prohibition against conduct prejudicial to the administration of
justice.)
See Rule 1.0(f)
“Substantial”See Rule 1.0(l)
Paragraph (a): There are several Disciplinary Rules which can be seen as specific
applications of the more general rule set forth in the Proposed Rule. DR 7-106(C)(2) provides that
a lawyer shall not "[a]sk any question that the lawyer has no reasonable basis to believe is relevant
to the case and that is intended to degrade a witness or other person." DR 7-102(A)(1) provides that
a lawyer shall not "take . . . action on behalf of the client when the lawyer knows or when it is
obvious that such action would serve merely to harass or maliciously injure another." DR 7-108(D)
provides that "[a]fter discharge of the jury . . . the lawyer shall not ask questions or make comments
to a member of that jury that are calculated merely to harass or embarrass the juror. . . ." DR
7-108(E) provides that a lawyer "shall not conduct . . . a vexatious or harassing investigation of
either a venireperson or a juror."
Paragraph (b): DR 7-105 provides that a lawyer “shall not present, participate in presenting,
or threaten to present criminal charges solely to obtain an advantage in a civil proceeding.”