[Excerpt] "Consider this scenario: an attorney represents a client in litigation against a corporation. The attorney gets a call from an employee of that corporation and the employee says, “everything in your complaint is absolutely correct.” However excited the attorney is to speak with this person, the Rules of Professional Conduct constrain whom the attorney can talk to if a corporation is involved in the pending litigation. In New Hampshire, any attorney can quickly find that Rule 4.2 prohibits contact with a represented party. But is this corporate employee a represented party? Even after reading the comment to the rule and the sparse interpretive case law available in New Hampshire, the attorney would be unable to discern whether it is proper to speak with this person, who could possibly make or break his or her case. Uncertainty of the rule’s scope breeds remarkable consequences. Speaking with this corporate employee could give the attorney access to valuable information – information that may be otherwise unavailable. A determination of improper contact, however, could disqualify the attorney as counsel in the pending matter, which could cause extreme hardship on the client. With such dire consequences for violation of the rule, it is frustrating that New Hampshire’s Rule 4.2 is so difficult to apply. New Hampshire’s Rule 4.2 is unworkably vague. The New Hampshire Supreme Court provides little direction as to who is a party under the rule when a corporation is a litigant. Currently, New Hampshire is in the process of reviewing all of its Rules of Professional Conduct. A new Rule 4.2 could take over two years for the New Hampshire Supreme Court to formally adopt. In the interim, New Hampshire practitioners are left with a Rule 4.2, which does not make sense and is difficult to apply. Courts throughout the country use various tests to define who is a party under Rule 4.2 when a corporation is involved in litigation. The New Hampshire Supreme Court, however, has yet to adopt a specific test. This has a chilling effect on contact with employees and/or former employees of a corporation involved in litigation. New Hampshire’s Rule 4.2 needs to be more clearly defined for practitioners so they can benefit from proper ex parte contact without fear of being disciplined. Furthermore, the rule’s scope should be narrowly tailored to fulfill its purpose to protect the attorney- client relationship. In this sense, application of the rule to a corporation should be similar to application of the rule to individuals. This article clarifies New Hampshire’s Rule 4.2 in relation to corporate litigants and establishes a few basic concepts gleaned by reviewing different jurisdictional interpretations of the rule. This article begins with background information regarding Rule 4.2 followed by a brief explanation of both the 2001 version of the ABA Model Rule 4. and the New Hampshire Rule 4.2.4 In particular, this article focuses on the difference between the comments of each rule. Next, this article surveys tests other jurisdictions have formulated to interpret the scope of Rule 4.2 as applied to corporate litigants and analyzes the likelihood of the New Hampshire Supreme Court adopting each test. This article then examines the 2003 version of the ABA Model Rule 4.2 and explains the origin of the rule and the scope of this rule when applied to a corporate litigant. The author then proposes a rule for New Hampshire that is easy to apply and narrowly tailored to fulfill its purpose. This article concludes that New Hampshire should adopt this modified version of the 2003 Model ABA Rule, which clarifies who is covered under the ambit of the rule when applied to corporate litigants."
Heather Menezes, Understanding New Hampshire’s Rule 4.2 as Applied to Corporate Litigants: An Explanation and Suggestions for Improvement, 2 PIERCE L. REV. 205 (2004). Available at http://scholars.unh.edu/unh_lr/vol2/iss2/8