Can a lawyer suing a government agency contact the agency's officials directly about the case without the agency lawyer's consent?

Plain-English summary

A lawyer whose firm defended State Board of Education employees and officials in a suit brought by a County Board of Education asked whether he could negotiate settlement directly with members of the County Board without the consent or approval of the County Board's attorney. The Disciplinary Commission concluded he may.

The opinion analyzes the question under Rule 4.2, which generally bars a lawyer from communicating about the subject of a representation with a party known to be represented by counsel unless the lawyer has the other lawyer's consent or is "authorized by law" to do so. The Comment to Rule 4.2 lists, as an example of communications authorized by law, the right of a party to a controversy with a government agency to speak with government officials about the matter. Because members of the County Board of Education are "government officials" within the meaning of that Comment, the opinion concludes the contemplated communications fall within the "authorized by law" exception.

The opinion grounds the exception in the First Amendment's "petition for redress of grievances" clause, citing Hazard and Hodes's The Law of Lawyering and Wolfram's Modern Legal Ethics, the ABA's Annotated Model Rules (fourth and fifth editions, the latter noting the Ethics 2000 amendments), and federal decisions including Camden v. State of Maryland and American Canoe Ass'n v. City of St. Albans. It notes that the ABA and numerous state bars have issued opinions permitting attorneys to contact government officials and employees without the agency lawyer's consent, and that California codified the exception directly in its version of Rule 4.2.

In practice

The opinion holds that, under the Alabama rule as it stood at the time, a lawyer for a party in a controversy with a government agency may contact the agency's officials directly about the matter, including to discuss settlement, without first obtaining the agency lawyer's consent, because the contact is "authorized by law" under Rule 4.2 and its Comment. The opinion applies that exception to members of a County Board of Education as government officials and rests it on the constitutional right to petition the government.

Common questions

Q: I am suing a government agency. Can I talk directly to its officials about settling without going through the agency's lawyer?

A: Yes. The opinion concludes that the right of a party in a controversy with a government agency to speak with government officials about the matter is "authorized by law" under Rule 4.2, so the agency lawyer's consent is not required.

Q: What is the legal basis for letting me bypass the agency's lawyer?

A: The opinion grounds the exception in the First Amendment right to petition the government for redress of grievances, citing The Law of Lawyering, Modern Legal Ethics, the ABA Annotated Model Rules, and federal cases such as Camden v. Maryland and American Canoe Ass'n v. City of St. Albans.

Q: Does this apply to board members and not just agency staff lawyers?

A: Yes. The opinion concludes members of the County Board of Education are "government officials" within the meaning of the Comment to Rule 4.2, so communications with them fall within the exception.

Background and rules framework

The opinion interprets Rule 4.2 (communication with person represented by counsel, Model Rule 4.2), which bars communication about the subject of the representation with a party the lawyer knows to be represented by another lawyer absent that lawyer's consent or authorization by law. It relies on the Comment's identification of a party's right, in a controversy with a government agency, to speak with government officials about the matter as a communication "authorized by law," and notes the Comment was amended in 2002 to recognize the role of the citizen's constitutional right to petition and the public policy of access to government decision makers.

Citations and references

Rules of Professional Conduct:

• Model Rule 4.2 / Ala. R. Prof. C. 4.2 (communication with person represented by counsel; "authorized by law" exception)

Cases:

• Camden v. State of Maryland, 910 F. Supp. 1115 (D. Md. 1996), Rule 4.2 inapplicable to a party's right to speak with government officials
• American Canoe Ass'n, Inc. v. City of St. Albans, 18 F. Supp. 2d 620 (S.D. W. Va. 1998), citizens may contact government agency officials about a controversy
• Norfolk S. Ry. Co. v. Thompson, 430 S.E.2d 371 (Ga. Ct. App. 1993)
• Wilkerson v. Brown, 995 P.2d 393 (Kan. Ct. App. 1999)

Other opinions cited:

• ABA Formal Ethics Opinion 95-396: communications with represented persons
• ABA Formal Ethics Opinion 97-408: communication with a government agency represented by counsel
• North Carolina State Bar Opinion 219 (1995); Association of the Bar of the City of New York Opinion 1988-8; Kentucky Bar Association Opinion E-332 (1988)

See also

• ABA Ethics Op. 97-408: Communication With a Government Agency Represented by Counsel
• ABA Ethics Op. 95-396: Communications With Represented Persons
• CA Bar Ethics Op. 1989-110: Communication With a Public Entity

Source

• Landing page: https://www.alabar.org/office-of-general-counsel/formal-opinions/2003-03/
• Original PDF: https://www.alabar.org/assets/2019/02/2003-03-1.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain; the linked PDF is authoritative.

ETHICS OPINION

RO-2003-03

QUESTION:

My law firm has been employed to defend employees and officials of the State Board of Education who have been sued by a County Board of Education. The lawsuit appears to be amenable to settlement and I would like to negotiate settlement possibilities directly with the members of the County Board of Education.

My question is whether I may communicate with the members of the County Board without the consent or approval of the Board's attorney.

ANSWER:

You may, as attorney for the State Board of Education, communicate directly with the members of the County Board of Education to discuss settlement of the pending lawsuit without obtaining the consent or approval of the attorney representing the County Board of Education.

DISCUSSION:

Communications with persons represented by counsel are governed by Rule 4.2 of the Rules of Professional Conduct, which provides as follows:

"Rule 4.2. Communication With Person Represented by Counsel

In representing a client, a lawyer shall not communicate about the subject of the representation with a party the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized by law to do so."

The Comment to Rule 4.2 expands upon the "authorized by law" exception:

"Communications authorized by law include, for example, the right of a party to a controversy with a government agency to speak with government officials about the matter."

Since members of the County Board of Education conclusively appear to be "government officials" within the meaning of the above-quoted Comment, communications with the members are permitted pursuant to the "authorized by law" exception quoted above.

Most authorities find justification for the exception in the "petition for redress of grievances" clause of the First Amendment to the United States Constitution. In The Law of Lawyering, Professors Hazard and Hodes provide the following analysis:

"... a lawyer for a private party who is in litigation with the government may seek ex parte interviews with relevant government officials. If the normal bar of Rule 4.2 were applied stringently, the government agency's lawyer could veto discussions between private parties and government officials, which is questionable policy, and might raise questions under the 'petition for redress of grievances' clause of the First Amendment."

The Law of Lawyering, Hazard & Hodes, Second Edition, Prentice Hall (1990) §4.2:109.

A similar analysis is found in Modern Legal Ethics by Charles Wolfram, Charles Frank Reavis Sr. Professor of Law at Cornell Law School:

"Requiring the consent of an adversary lawyer seems particularly inappropriate when the adversary is a government agency. Constitutional guarantees of access to government and statutory policies encouraging government in the sunshine seem hostile to a rule that prohibits a citizen from access to an adversary governmental party without prior clearance from the governmental party's lawyer. [fn 58] U.S. Const., amend 1 ('Congress shall make no law respecting ... the right of the people peaceably... to petition the Government for a redress of grievances')."

Modern Legal Ethics, Charles W. Wolfram, West Publishing Co. (1986), §11.6.2, p. 614, fn 58.

The Annotation to Rule 4.2 in the Fourth Edition of the ABA's Annotated Model Rules of Professional Conduct also references the First Amendment, viz.:

"When a governmental agency is the represented party, the Comment to Rule 4.2 recognizes that a party may 'speak with governmental officials about the matter'. The First Amendment right of petition brings such communications within the 'authorized by law' exception to Rule 4.2."

Annotated Model Rules of Professional Conduct, Fourth Edition, American Bar Association (1998) p. 411.

After the Model Rules were amended by the Ethics 2000 Committee, the ABA employed slightly different language to reaffirm its interpretation of the "authorized by law" exception. The Fifth Edition of the Annotated Model Rules addresses the issue as follows:

"When a governmental agency is the represented party, paragraph [3] of the Comment, as amended in 2002, recognizes 'the possibility that a citizen's constitutional right to petition and the public policy of ensuring a citizen's right of access to government decision makers may create an exception to this Rule'."

Annotated Model Rules of Professional Conduct, Fifth Edition, American Bar Association (2002) p. 427.

Both state and federal courts have uniformly recognized the right of an attorney suing a governmental entity to communicate directly with the government officials involved in the lawsuit concerning the disposition or resolution thereof. The United States District Court of Maryland has concluded definitively as follows:

"Insofar as a party's right to speak with government officials about a controversy is concerned, Rule 4.2 has been uniformly interpreted to be inapplicable. See 2 Geoffrey C. Hazard, Jr. & W. William Hodes, The Law of Lawyering § 4.2:109 (2d ed. Supps. 1991 & 1994); Charles W. Wolfram, Modern Legal Ethics § 11.6.2 (1986)."

Camden v. State of Maryland, 910 F. Supp. 1115, 1118, (D. Md. 1996).

In another representative case, American Canoe Ass'n, Inc. v. City of St. Albans, 18 F.Supp.2d 620 (S.D. W.Va. 1998), defense counsel attempted to prohibit plaintiff's attorney from discussing settlement with the members of the city governing body. The Court concluded as follows:

"... generally, communications with a represented adverse party should proceed through that party's lawyer, pursuant to Model Rule 4.2.

Here, however, both Defendants are government agencies. Government remains the servant of the people, even when citizens are litigating against it. Thus, when citizens deal with government agencies, several sorts of direct contact are 'authorized by law' and permissible. Official comment to Rule 4.2 notes:

'Communications authorized by law include, for example, the right of a party to a controversy and a government agency to speak with government officials about the matter.'

As interpreted in an American Bar Association Formal Ethics Opinion, this right to speak with government officials about a matter in controversy refers to the constitutionally protected right to petition the government and the derivative public policy of ensuring a citizen's right of access to government decision makers. ABA Formal Op. 97-408." 18 F. Supp.2d at 621-622.

See also, Norfolk S. Ry. Co. v. Thompson, 430 S.E. 2d 371 (Ga. Ct. App. 1993); Wilkerson v. Brown, 995 P.2d 393 (Kan. Ct. App. 1999). See generally, Lidge, Government Civil Investigations and the Ethical Ban on Communication with Represented Parties, 67 Ind. L.J. 549 (1992); Baker, Ethical Limits on Attorney Contact with Represented and Unrepresented Officials, 31 Suffolk U.L. Rev. 349 (1997).

The American Bar Association and numerous State Bar Associations have authored opinions permitting attorneys to contact employees and officials of a government agency without the consent of the agency's attorney. See, e.g., ABA Formal Ethics Opinion 95-396; ABA Formal Ethics Opinion 97-408 (cited in American Canoe Association, supra); North Carolina State Bar Association Ethics Committee Opinion 219 (1995); Association of the Bar of the City of New York, Opinion 1988-8; Kentucky Bar Association Ethics Committee, Opinion E-332 (1988).

Additionally, at least one state, California, has codified the exception and expressly included it in California's version of Rule 4.2, as follows:

"This rule shall not apply to communications with a public officer, board, committee or body." Calif. R. 7-103.

Based upon the above, it is the opinion of the Disciplinary Commission of the Alabama State Bar that you, as attorney for the State Board of Education, may communicate directly with the members of the County Board of Education to discuss settlement of the pending lawsuit without obtaining the consent or approval of the attorney representing the County Board.

LGK/vf

9/18/03