The ‘no contact’ rule is an important rule that governs how Australian lawyers are expected to behave when carrying out their duties as a solicitor. If a lawyer must not discuss a matter directly with the other party when they know that other party has legal representation.
This rule applies equally to private practice lawyers and employed legal counsel. However, it can be difficult in practice for in-house lawyers to adhere to this rule. This is because the nature of an in-house lawyer’s role means that:
- they may be colleagues of the other party and both the lawyer and the opponent have the same employer
- in-house counsel often act as an intermediary between external lawyers and company executives
- they can sometimes wear two hats; a legal advisor who must comply with legal professional rules and as a company secretary or in a commercial capacity
This article is written by our Senior In-House Lawyer and discusses the no contact rule in depth and in the context of in-house legal practice.
Key Takeaways
- the No Contact Rule is easy to overlook because of the nature of an in-house lawyer’s role which is embedded in the employment of their client
- internal counsel must seek the consent of the other party’s lawyer before making direct contact without the presence of their opponent’s legal representative
- additional care needs to be taken in certain industries, workplace investigations and where the other party is also an employee of the legal counsel’s employer
What is the No Contact Rule?
The No Contact Rule is contained in Rule 33 of the Australian Solicitors Conduct Rules. These rules are applied uniformly across all Australian States and Territories.
In summary, the rule provides that:
- lawyers must not directly communicate with a party they know is represented by another lawyer without obtaining the consent of that lawyer
- the purpose of the rule is to protect the represented party’s right to legal advice and prevent being taken advantage of because of unequal legal knowledge or power
- the rule applies to all forms of communication, including oral, written, and electronic
- if a lawyer breaches the No Contact Rules, they may face disciplinary action, reputational damage, and potential legal consequences
How does the No Contact Rule apply to in-house lawyers?
How does the No Contact Rule apply to in-house lawyers?
Legal counsel can be employed in different industries and may be employed by private or listed companies, or by public sector employers.
The No Contact Rule does not discriminate between industries or sectors. However, the application of this rule cannot be divorced from the environment within which it is sought to be applied.
For example:
- in the healthcare sector, legal counsel may need to moderate communications between medical professionals and patients. Some of those parties may be represented in litigation
- in the highly regulated finance industry, the incorrect application of the No Contact Rule could have significant implications for compliance investigations or regulatory disputes. There is a risk that internal compliance teams (which often include legal counsel) may accidentally breach the rule during routine audits or investigations
To ensure the No Contact Rule is correctly applied:
- in-house lawyers should receive training tailored to their industry and employer
- regulatory bodies may need to be consulted
In-house lawyers providing cross-border legal help
Australian in-house lawyers are often employed as part of a larger multinational company. These lawyers face unique challenges when dealing with the No Contact Rule across different legal jurisdictions. However, it is important to remember that even in these scenarios, Australian lawyers are still subject to the Australian Solicitors Conduct Rules.
Other jurisdictions may have more relaxed or stricter interpretations of equivalent no contact rules. This can create grey areas when engaging with parties across borders, particularly in multijurisdictional litigation or commercial transactions.
In-house lawyers may work with cross-border teams where legal standards differ. A conversation that is permissible in one jurisdiction may breach the ethical standards in another.
Technology and the No Contact Rule for in-house legal counsel
Technology introduces additional challenges to internal counsel seeking to adhere to the No Contact Rule.
Tools like Slack, Teams, or WhatsApp allow for instantaneous communication. This makes it easier to accidentally communicate with a represented party and breach the rule.
To avoid risks presented by automated or instantaneous communication, in-house lawyers should:
- develop clear guidelines around the use of digital communication platforms. For example, by using dedicated, secure channels for communications with represented parties
- regularly audit AI-powered communication systems to ensure they do not unintentionally breach the No Contact Rule. Any automated client interactions should be supervised by human lawyers
Workplace investigations and in-house lawyers
In-house lawyers are often involved in internal investigations when there are allegations of misconduct or regulatory issues. These investigations may involve interviewing employees, some of whom could be represented by their own counsel. This makes complying with the No Contact Rule difficult.
Investigations often involve multiple stakeholders, including:
- human resources;
- external law firms
- internal departments and employees
In-house counsel must carefully manage these interactions to remain compliant with the No Contact Rule.
Ensure that communications with represented employee is only carried out with their lawyer present, unless their lawyer has provided consent.
In-house lawyers should work closely with human resources and internal investigators to ensure they understand the boundaries of the No Contact Rule.
Practical tips for in-house lawyers navigating the No Contact Rule
- Establish clear internal guidelines to identify when employees or third parties are represented by counsel. Legal counsel may need to educate employees so they understand that in-house counsel must respect the boundaries set by the No Contact Rule
- In complex matters, it’s best practice for in-house counsel to regularly consult with external lawyers. This is particularly important if it is unclear whether communication could violate the No Contact Rule
- Conflicts may arise between the interests of the client (i.e. the employer) and the No Contact Rule. Remember that a lawyer’s foremost duty is the administration of justice. Any potential conflicts between the duty to act in the best interests of the client and rule 33 of the ASCR must be decided in favour of the administration of justice. In-house lawyers should escalate the issue to senior legal management or external counsel
Frequently Asked Questions
No, unless they have permission from the employee’s legal counsel. Direct communication with a represented party violates the No Contact Rule.
If a represented employee initiates communication, the in-house lawyer should immediately cease the conversation and advise the employee to direct inquiries through their lawyer.
A lawyer can contact the other party without their solicitor present if the other lawyer consents or if Court rules or orders permit the communication. Be mindful that the exceptions to the No Contact Rule are limited.
Always document communications with external counsel, particularly when seeking permission to contact represented parties. This ensures there is a clear paper trail and the legal counsel can prove that permission was granted.
