Attorney News - October 2016
Tip of the Month: Contacting Government
Officials
Suppose you are representing a client in a
dispute with a government agency. The agency is represented by counsel, perhaps
the Attorney General’s Office or the local solicitor or municipal counsel. Rule 4.2 of the
Rules of Professional Conduct prohibits a lawyer from communicating directly
with a represented party about the subject of the representation without the
consent of counsel, or as authorized by law. Does this prohibit you from
petitioning the government agency on policy matters the way any other citizen
would be allowed to do?
In 1997, the ABA Standing Committee on Ethics and Professional Responsibility addressed the question in Formal Opinion 97-408, Communication with Government Agency Represented by Counsel (1997). The Committee noted that the “authorized by law” exception arises out of the preservation of the First Amendment’s protection of the right to petition the government in controversies with government officials. The Committee concluded that a lawyer representing a client before an agency may contact the agency when two conditions are satisfied:
In 1997, the ABA Standing Committee on Ethics and Professional Responsibility addressed the question in Formal Opinion 97-408, Communication with Government Agency Represented by Counsel (1997). The Committee noted that the “authorized by law” exception arises out of the preservation of the First Amendment’s protection of the right to petition the government in controversies with government officials. The Committee concluded that a lawyer representing a client before an agency may contact the agency when two conditions are satisfied:
1.
The officials to be contacted are in a position to take or
recommend action in the matter and the substance of the communication relates
to policy issues including settlement; and
2.
The communicating lawyer gives opposing counsel advance notice
of the impending communication so that they can give appropriate advice to
their clients as to how to respond to the inquiry.
The ABA opinion has generally been adopted and
followed in state bar ethics opinions. It is important that the right to
communicate with government officials recognized by the ABA pertains to matters
of policy, not the particulars of cases.
Comment 5 to Rule 4.2 echoes this analysis, stating, “Communications authorized by law may include communications by a lawyer on behalf of a client who is exercising a constitutional or other legal right to communicate with the government.” Also, the fact of representation does not prohibit the lawyer from communicating about other matters unrelated to the representation. Comment 4 states, “the existence of a controversy between a government agency and a private party, or between two organizations, does not prohibit a lawyer for either from communicating with nonlawyer representatives of the other regarding a separate matter.”
Comment 5 to Rule 4.2 echoes this analysis, stating, “Communications authorized by law may include communications by a lawyer on behalf of a client who is exercising a constitutional or other legal right to communicate with the government.” Also, the fact of representation does not prohibit the lawyer from communicating about other matters unrelated to the representation. Comment 4 states, “the existence of a controversy between a government agency and a private party, or between two organizations, does not prohibit a lawyer for either from communicating with nonlawyer representatives of the other regarding a separate matter.”
