Rule Text (verbatim from The Florida Bar)
(a) In representing a client, a lawyer must not communicate
about the subject of the representation with a person the lawyer
knows to be represented by another lawyer in the matter, unless
the lawyer has the consent of the other lawyer. Notwithstanding
the foregoing, a lawyer may, without such prior consent,
communicate with another’s client to meet the requirements of any
court rule, statute or contract requiring notice or service of process
directly on a person, in which event the communication is strictly
restricted to that required by the court rule, statute or contract, and
a copy must be provided to the person’s lawyer.
(b) An otherwise unrepresented person to whom limited
representation is being provided or has been provided in accordance
with Rule Regulating The Florida Bar 4-1.2 is considered to be
unrepresented for purposes of this rule unless the opposing lawyer
knows of, or has been provided with, a written notice of appearance
under which, or a written notice of the time period during which,
the opposing lawyer is to communicate with the limited
representation lawyer as to the subject matter within the limited
scope of the representation.
Educational reference. This page summarizes a Florida Rule of Professional Conduct for educational purposes. The rule text and Comment are mirrored from the Florida Bar's official publication and are public domain. The plain-English summary and any commentary are the opinion of Phillips, Hunt & Walker and are general information only — not legal advice. Reading this page does not create an attorney-client relationship. If you believe a Florida lawyer has violated this rule, you can file a complaint with The Florida Bar at floridabar.org. Past results do not guarantee a similar outcome.
What this rule means in plain English
Once the other side has a lawyer, your lawyer cannot communicate directly with that party about the case — even if you badly want a back-channel conversation. All substantive communication must go through the other party’s lawyer or have their explicit consent. The rule applies in pre-litigation negotiations, not just lawsuits. With corporate adversaries, your lawyer must route officers, directors, and managing-agent contacts through corporate counsel.
Florida Bar Ethics Opinions interpreting this rule
- Opinion 88-14 (1988)
<p>If you sue a corporation, your lawyer can interview the company's former employees and former managers about the case without permission from the corporation's attorney. Current employees whose conduct is at issue still need corporate counsel's consent. The line between current and former matters — one of the first things your lawyer will want to identify in any case against a company.</p>
Read on floridabar.org → - Opinion 78-4 (1978)
<p>Once the other side has retained a lawyer for a matter — even before any lawsuit is filed — your lawyer cannot communicate directly with that party. With a corporate adversary, your lawyer must go through corporate counsel for the corporation's officers, directors, and managing agents, but can speak directly to lower-level employees not involved in the matter.</p>
Read on floridabar.org → - Opinion 76-21 (1976)
<p>If you suspect the lawyer on the other side isn't passing your settlement offers to their client, you can't just go around them and contact the client directly. The rule applies even when you have a good-faith belief the client is being kept in the dark — communications still must go through the represented party's lawyer. The exception is asking the court to intervene.</p>
Read on floridabar.org → - Opinion 09-1 (2009)
<p>A lawyer pursuing a claim against a state agency cannot directly contact agency officers, directors, managers, or employees whose actions are at issue in the matter — without first getting consent from the agency's lawyer. The rule treats government agencies like corporate parties: the represented-party rule blocks back-channel communications with the people who matter to the case.</p>
Read on floridabar.org → - Opinion 88-4 (1988)
<p>A lawyer cannot contact the opposing party directly after a matter ends to fish for evidence that the opposing lawyer mishandled the case. The represented-party rule continues even after the case concludes for purposes of probing other-side mishaps. If you suspect the lawyer on the other side of your case committed malpractice against their own client, you can't gather that evidence by calling that client.</p>
Read on floridabar.org → - Opinion 65-62 (1965)
<p>In a workers' compensation case where the insurance carrier is a direct party, the claimant's lawyer can communicate directly with the carrier's claims representatives — but only if the carrier's lawyer knows about it and permits it. The default is still no direct contact with the represented party's people; the carrier-claims-rep relationship doesn't override the represented-party rule on its own.</p>
Read on floridabar.org → - Opinion 69-40 (1969)
<p>A lawyer cannot interview the opposing party about anticipated witness testimony without consent from that party's lawyer. The witness label doesn't open a back door around the represented-party rule. Once someone is represented in a matter, all substantive contact about that matter must go through their lawyer — including pre-trial witness prep questions.</p>
Read on floridabar.org →
Comment (verbatim from The Florida Bar)
This rule contributes to the proper functioning of the legal
system by protecting a person who has chosen to be represented by
a lawyer in a matter against possible overreaching by other lawyers
who are participating in the matter, interference by those lawyers
with the client-lawyer relationship, and the uncounseled disclosure
of information relating to the representation.
This rule applies to communications with any person who is
represented by counsel concerning the matter to which the
communication relates.
The rule applies even though the represented person initiates
or consents to the communication. A lawyer must immediately
terminate communication with a person if, after commencing
communication, the lawyer learns that the person is one with whom
communication is not permitted by this rule.
This rule does not prohibit communication with a represented
person, or an employee or agent of such a person, concerning
matters outside the representation. For example, the existence of a
controversy between a government agency and a private party, or
between 2 organizations, does not prohibit a lawyer for either from
communicating with nonlawyer representatives of the other
regarding a separate matter. Nor does this rule preclude
communication with a represented person who is seeking advice
from a lawyer who is not otherwise representing a client in the
matter. A lawyer may not make a communication prohibited by
this rule through the acts of another. See rule 4-8.4(a). Parties to a
matter may communicate directly with each other, and a lawyer is
not prohibited from advising a client concerning a communication
that the client is legally entitled to make, provided that the client is
not used to indirectly violate the Rules of Professional Conduct.
Also, a lawyer having independent justification for communicating
with the other party is permitted to do so. Permitted
communications include, for example, the right of a party to a
controversy with a government agency to speak with government
officials about the matter.
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. Consent of the organization’s
lawyer is not required for communication with a former constituent.
If a constituent of the organization is represented in the matter by
the agent’s or employee’s own counsel, the consent by that counsel
to a communication will be sufficient for purposes of this rule.
Compare rule 4-3.4(f). In communication with a current or former
constituent of an organization, a lawyer must not use methods of
obtaining evidence that violate the legal rights of the organization.
See rule 4-4.4.
The prohibition on communications with a represented person
only applies in circumstances where the lawyer knows that the
person is in fact represented in the matter to be discussed. This
means that the lawyer has actual knowledge of the fact of the
representation; but such actual knowledge may be inferred from the
circumstances. See terminology. Thus, the lawyer cannot evade
the requirement of obtaining the consent of counsel by closing eyes
to the obvious.
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 4-4.3.
Amended Oct. 10, 1991, effective Jan. 1, 1992 (587 So.2d 1121); amended
July 23, 1992, effective January 1, 1993 (605 So.2d 252); amended
November 13, 2003, effective January 1, 2004 (860 So.2d 394); amended
March 23, 2004, effective May 22, 2006 (933 So.2d 417); amended May 20,
2004 (875 So.2d 448); amended May 29, 2014, effective June 1, 2014 (140
So.3d 541).