Over the course of this three-part series, we have examined recent developments involving Rule 4.2 of the Virginia Rules of Professional Conduct, the so-called “no-contact rule,” as it pertains to organizations represented by counsel. Part I discussed Virginia’s previous approach to the Rule under the “control group test.” Part II discussed the Supreme Court of Virginia’s (“SCVA”) April 7, 2020 Order, which set aside Legal Ethics Opinion 1890 and signaled a potential change in Virginia’s interpretation of the Rule. This final post examines the SCVA’s recent adoption of the American Bar Association’s Model Rule approach to represented organizations.
Specifically, on January 6, 2021, the SCVA amended Comment 7 to Rule 4.2 (click here to see the SCVA’s order), which now states in relevant part:
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.
This amendment to Comment 7 effectively abandons the “control group test” previously used in Virginia and adopts the ABA Model Rule approach for represented organizations. The Model Rule approach prohibits communication with any employee of a represented organization “whose act or omission in connection with the matter may be imputed to the organization for purposes of civil or criminal liability,” i.e., who may subject the organization to vicarious liability regarding the matter in question. This is a much broader universe of employees than the one covered by Virginia’s prior interpretation of the Rule. By adopting the ABA model rule approach, Virginia’s interpretation of Rule 4.2 is now consistent with neighboring states and what is likely the majority view nationwide.