Can a lawyer suing the government contact a represented government official directly to discuss settlement or policy?

Plain-English summary

The Committee asked whether a lawyer suing a governmental body may contact a government decision-maker directly even though that official is a represented party in the litigation. The question pits the no-contact policy of Rule 4.2 against a client's right to petition the government through counsel, a right the opinion says is not lost merely because litigation is pending.

Following what it describes as the majority position, the opinion concludes that a lawyer may contact a represented decision-maker on behalf of a client to discuss a matter of government policy related to the lawsuit, such as conditions for settling, subject to two conditions: the lawyer must give reasonable advance written notice of the substance of the intended communication to the government's litigation counsel, and the communication must be limited to policy matters within the official's authority and may not seek facts for use in the litigation. The opinion rests heavily on ABA Formal Opinion 97-408, which struck the same balance under the identical Model Rule 4.2, and notes the 2002 revision to the Rule 4.2 commentary that more explicitly recognizes a client's right to petition the government through counsel.

The opinion expressly revises earlier Alaska guidance. It disavows and supersedes the conclusion of Ethics Opinion 94-1 (which had treated such a presentation to an agency board as a Rule 4.2 violation) and disavows inconsistent broad language in Ethics Opinion 71-1, while reaffirming the parts of 94-1 and 71-1 about the values behind Rule 4.2 and about determining which officials have managerial responsibility. Applied to the facts, the lawyer may write to or seek a meeting with the Commissioner about not appealing an adverse judgment, provided advance written notice goes to the Assistant Attorneys General handling the case and the contact stays on policy.

In practice

Under this opinion, as the Alaska rule stood at the time, a private-party lawyer who wants to contact a represented government official about settling or otherwise resolving litigation may do so only after sending the government's litigation counsel reasonable advance written notice that identifies the official, the proposed date of contact, and the substance of the intended communication, sent far enough ahead that counsel can advise the official how to respond. The opinion confines the permitted contact to policy matters the official has authority to act on, bars using the contact to gather facts or admissions, and notes it does not authorize ex parte contact with an adjudicator.

Common questions

Q: Can a lawyer suing the state call a commissioner directly to argue against an appeal?

A: Yes, within limits. The opinion permits contacting the represented official about policy related to the litigation, including whether to appeal, if the lawyer first gives the government's litigation counsel reasonable advance written notice and keeps the discussion to policy.

Q: What notice does the lawyer have to give first?

A: Per the opinion, reasonable advance written notice to the government's litigation counsel identifying the official, the date of the proposed contact, and the substance of the intended communication, sent early enough for counsel to advise the official.

Q: Can the lawyer use the meeting to gather facts?

A: No. The opinion limits the contact to policy matters within the official's authority and forbids using the communication to seek facts or admissions outside ordinary discovery.

Q: Does this change earlier Alaska opinions?

A: Yes. The opinion disavows and supersedes the conclusion of Ethics Opinion 94-1 and disavows inconsistent broad language in Ethics Opinion 71-1 on this question.

Background and rules framework

The opinion interprets Alaska Rule of Professional Conduct 4.2 (communication with represented persons, identical to Model Rule 4.2) and its "authorized by law" exception, read together with the right to petition the government. It adopts the balancing approach of ABA Formal Opinion 97-408 and references Restatement (Third) of the Law Governing Lawyers § 101A. The Committee's prior Opinions 71-1, 84-1, and 2011-2 address which officials have managerial responsibility.

Citations and references

Rules of Professional Conduct:

• Alaska RPC 4.2 (communication with represented persons) and commentary
• Alaska RPC 8.4(c) (false or misleading statements)

Cases:

• Walters v. National Ass'n of Radiation Survivors, 473 U.S. 305 (1985), discussed and distinguished
• Evans v. Jeff D., referenced via related authorities

Other opinions cited:

• ABA Formal Opinion 97-408: communication with a government agency represented by counsel
• Alaska Ethics Opinions 94-1 and 71-1 (disavowed in part), 84-1, 2006-1, 2011-2

See also

• ABA Formal Op. 97-408: Communication With a Government Agency Represented by Counsel
• AK Bar Ethics Op. 2018-2: Contract Notice to a Represented Party

Source

• Landing page: https://alaskabar.org/ethics-discipline/ethics-opinions/adopted-ethics-opinions-chronological/
• Original PDF: https://alaskabar.org/wp-content/uploads/2017-2.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

ALASKA BAR ASSOCIATION
ETHIC OPINION NO. 2017-2
Attorney’s Ability to Contact Government Official Who Is a Represented
Party to Discuss Settlement or Other Policy Related to the Litigation
ISSUE PRESENTED
Is it ever ethically permissible for an attorney in a suit against a
governmental body to contact a government decision-maker directly, even
though that person is a represented party in the litigation?
SHORT ANSWER
The policy behind the rule barring contact with a represented party
sometimes conflicts with the right of an individual or organization to use
counsel to petition the government, a right that is not lost merely because
litigation is ongoing. To answer the ethics question posed, the Committee must
balance these two competing interests.
In conformity with the majority of jurisdictions that have considered this
question, the Committee concludes that an attorney ethically may contact a
represented decision-maker on behalf of a client in order to discuss a matter of
government policy related to the lawsuit – such as conditions for settling the
suit – but the attorney must give reasonable advance written notice of the
substance of the intended communication to the attorney representing the
government official in the pending litigation. Further, the attorney’s
communication may not seek facts for use in the litigation and must be limited
to matters of government policy on which the attorney reasonably believes the
official has the authority to take or recommend action.
This conclusion conflicts with statements contained in Ethics Opinion
71-1 and with the conclusion reached in Ethics Opinion 94-1. For the reasons
discussed below, the inconsistent statements and conclusions in those earlier
opinions are disavowed and superseded by the analysis in this opinion.
STATEMENT OF FACTS
In the situation presented to the Committee, Attorney represents a
nonprofit organization that has sued the State of Alaska, alleging that the State
enacted an unconstitutional law. The caption of the suit names as defendants
the State of Alaska generally and, in her official capacity, the Commissioner of
the Department that implements the challenged law. The State formally is
represented in the litigation by the Attorney General; two Assistant Attorneys

1

General entered their appearances and have been responsible for the in-court
activities related to the litigation.
Attorney’s client prevailed in the litigation in the superior court, and
Attorney would like to contact the Commissioner directly to attempt to
persuade her to not to appeal the superior court’s decision. Attorney believes
that the personal approach could be more effective than discussing the issue
with the Assistant AGs and asking them to relay the message to the
Commissioner as their client.
Attorney wants to know if he may contact the Commissioner directly, as
an exercise of his client’s constitutional right to petition the government, or
whether Rule of Professional Conduct 4.2 bars such direct contact absent
consent by the Commissioner’s litigation counsel.
For purposes of the analysis that follows, it does not matter if the
Commissioner has final authority to settle the case and to choose not to
appeal, or only the authority to recommend such action to another government
official, such as the State Attorney General.
ANALYSIS
Alaska Professional Conduct Rule 4.2 states in full:
In representing a client, a lawyer shall not communicate about the
subject of the representation with a party or person 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 to
do so by law or a court order.
The commentary to this rule reiterates that the rule does not prohibit a
communication that is authorized by law. It states particularly that
“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.”1
Rule 4.2 ensures that attorneys respect the choice of individuals and
organizations that have chosen to be represented by counsel about a particular
matter. The communication at issue here – the proposed contact with the
Commissioner about the litigation – falls squarely within the prohibition of the

Alaska Professional Conduct Rule 4.2, Commentary Para. 5 (as adopted
in 2009).
1

2

rule, unless the communication is “authorized by law,” as that term is used in
the rule and the commentary.2
The American Bar Association’s Standing Committee on Ethics and
Professional Responsibility addressed the exact issue presented here in its
Formal Opinion 97-408.3 The ABA Ethics Opinion recognizes and discusses
the competing interests, on the one hand, of protecting a party who has chosen
to be represented by counsel from being contacted directly by an opposing
attorney and, on the other hand, of allowing a lawyer to assist a client in
exercising her constitutional right to petition the government. The ABA Ethics
Opinion concludes that the proper balance is to allow direct contact under
certain limited conditions:
Two exceptions to the no-contact rule do not apply to the facts at issue
here, though they may apply in other circumstances.
2

First, Rule 4.2 allows communications concerning matters outside the
pending litigation. Paragraph 4 of the commentary to the rule gives the
example that a lawyer representing a party engaged in a suit against the
government is not prohibited from contacting a nonlawyer representative of the
government on a wholly different matter. See also Ethics Opinion 2006-1
(further discussing how the no-contact rule does not apply to communications
with government officials unrelated to the matter in which the attorney
represents himself or a client in a suit where the government is a represented
party). That exception does not apply here, because Attorney wants to contact
the Commissioner about the litigation in which Attorney represents one party
and the Commissioner is a representative of the opposing party.
Second, in a suit against the government, Rule 4.2 allows contacting a
government employee with knowledge relevant to a lawsuit, so long as the
employee is a potential witness but not a representative of the government in
that lawsuit. Paragraph 6 of the commentary explains that, in the case of a
represented organization, the rule “prohibits communications by a lawyer
concerning the matter with persons having managerial responsibility on behalf
of an organization.” Ethics Opinion 2011-2 at 1 interprets “managerial
responsibility” to mean that the person has “sufficient authority to speak on
behalf of the organization and thus legally bind the organization.” See also
Ethics Opinions 71-1 and 84-1 (both discussing how to determine which
employees have managerial responsibility). The exception does not apply here,
because the Commissioner is a person with managerial responsibility on behalf
of the State. That is, the Commissioner personally has the authority to speak
on behalf of the Department and to take actions that bind the Department.
See American Bar Association Standing Committee on Ethics and
Professional Responsibility, Formal Opinion 97-408, Communication with
Government Agency Represented by Counsel (Aug. 2, 1997) [hereinafter “ABA
Ethics Opinion”].
3

3

Balancing the interests served by the no-contact rule against the
constitutionally-based policy favoring citizen access to government
decision makers, the Committee concludes that [Model] Rule 4.24
does not prohibit a lawyer representing a private party in a
controversy with the government from communicating directly with
governmental officials who have authority to take or recommend
action in the matter, provided the communication is solely for the
purpose of addressing a policy issue, including settling the
controversy. To give effect to the purposes of Rule 4.2 even in this
situation, however, the Committee concludes that the lawyer must
afford government counsel reasonable advance notice of an intent
to communicate, in order to afford an opportunity for the officials
to obtain advice of counsel before entertaining the
communication.5
The ABA Ethics Opinion notes that government officials represented in
litigation by counsel clearly are covered by Rule 4.2’s ban on contacting a
represented party, but the ABA Ethics Committee reasoned that strict
application of a no-contact rule would frustrate an individual’s right to petition
the government through her chosen counsel.6 Discussing these two competing
principles, and quoting from a New York City Bar Opinion, the ABA Ethics
Opinion observes:
[G]overnment lawyers should not be able to block all access to
government officials to the point of interfering with the right to
petition for redress, but neither should attorneys for private parties
be allowed to approach uncounselled public officials who may not
know exactly what cases are pending against them, the status of
those cases, the consequences of those cases, or the consequences
their statements may have in those cases.7
At the time the ABA Ethics Opinion was drafted, the commentary to
Model Rule 4.2 stated in pertinent part: “Communications authorized by law
include, for example, the right of a party to a controversy with a government to

Model Rule 4.2, discussed in ABA Ethics Opinion 97-408, is identical to
Alaska’s Professional Conduct Rule 4.2.
4

5

ABA Ethics Opinion 97-408 at 2.

6

See id. at 4-5.

Id. at 6-7, quoting from Association of the Bar of the City of New York,
Committee on Professional Ethics Opinion 1991-4 (quotation marks and
punctuation alterations omitted).
7

4

speak with government officials about the matter.”8 This sentence is
ambiguous with respect to whether the drafters intended only to recognize the
personal right of a client to petition the government or whether instead the
drafters intended to ensure that a party could petition the government through
counsel.9 The ABA Ethics Opinion interpreted the “right of a party” to speak to
the government’s decision-maker to encompass the right of the party to
communicate with the government decision-maker through counsel, “else there
would be no reason to deal with the issue in the context of a rule that applies
only to lawyers.”10
Subsequent to the issuance of ABA Ethics Opinion 97-408, the
commentary to Model Rule 4.2 was revised to acknowledge more explicitly that
a client has a right to petition the government through counsel.11 The 2002
revision deleted the sentence quoted above (which refers expressly only to “the
right of a party”), and added the following sentence: “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.”12
As noted earlier, the ABA Ethics Opinion imposes two conditions on a
lawyer’s right to speak to a represented government official on behalf of a
client:
First, “the government official to be contacted must have authority to
take or recommend action in the controversy, and the sole purpose of the
communication must be to address a policy issue, including settling the
controversy.”13 Thus, using a communication with the government official to
seek discovery in the absence of government counsel is forbidden.
Second, the lawyer for the private party “must always give government
counsel advance notice that [he or she] intends to communicate with officials of
the agency to afford such officials an opportunity to discuss with government
American Bar Association Center for Professional Responsibility, A
LEGISLATIVE HISTORY: THE DEVELOPMENT OF THE MODEL RULES OF PROFESSIONAL
CONDUCT, 1982-2005 at 534 (2006) (emphasis added).
8

See ABA Ethics Opinion 97-408 at 6 n.10 (discussing the language then
in the commentary to Model Rule 4.2).
9

10

Id.

See A LEGISLATIVE HISTORY: THE DEVELOPMENT OF THE MODEL RULES OF
PROFESSIONAL CONDUCT, 1982-2005 at 539, 541.
11

12

Id. at 539 (emphasis added).

13

ABA Ethics Opinion 97-408 at 7 (footnote omitted).
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counsel the advisability of entertaining the communication.”14 Under the ABA
Ethics Committee’s approach, this condition applies whether the lawyer
intends oral or written communication with the government official.15
The ABA Ethics Opinion notes accurately that its conclusions generally
conform with a majority of then-recent ethics opinions from other bar
associations.16 The Opinion observes that some jurisdictions go further and,
by rule, authorize a lawyer in litigation to communicate directly with any
government official without notice to or consent from opposing counsel, either
in all situations17 or when the attorney is communicating with an official who
has the authority to redress a grievance of the attorney’s client.18
This Committee’s research has located other recent opinions that have
taken the same general approach as the ABA Ethics Opinion, sometimes
relying on a state comment that clearly authorizes a communication with a
government official.19 The Committee has located no recent ethics opinion that
forbids communications by a lawyer in the circumstances and with the
conditions approved by the ABA Ethics Opinion. Legal scholars also have
expressed the view that a lawyer should be authorized to speak directly to a
represented government official when the purpose of the communication is to
discuss a matter of policy, such as settling a case, and there is no attempt to
obtain facts or admissions outside of the ordinary discovery process.20
14

Id. at 7-8.

See id. at 8 (specifying that, if the lawyer intends to send a written
communication, the lawyer must give government counsel a copy of the written
material at a time and in a fashion that will afford counsel a reasonable
opportunity to advise her client whether to receive the communication from the
lawyer for the other side).
15

See id. at 5 n.7; see, e.g., Association of the Bar of the City of New York,
Committee on Professional Ethics Opinion 1991-4; N.C. State Bar Ass’n, Ethics
Comm. Op. 202 (1995); Utah State Bar, Ethics Comm. Op. 115 (1993) & Op.
115R (1994).
16

See ABA Ethics Opinion 97-408 at 5 n.8, citing the predecessor to Cal.
Rule of Prof. Conduct 2-100(C)(1) (which, like California’s current rule, provides
that the general no-contact rule does not apply to communications with a
public official, board, committee, or body).
17

18

See id., citing District of Columbia Rule of Prof. Conduct 4.2(d).

See, e.g., Alabama State Bar, Formal Ethics Op. 2003-03 (Sept. 18,
2003); District of Columbia Bar Ass’n, Ethics Op. 340 (May 2007); N.C. State
Bar Ass’n, 2005 Formal Ethics Op. 5 (July 21, 2006).
19

See, e.g., RESTATEMENT (THIRD) OF THE LAW GOVERNING LAWYERS § 101A
(allowing contact with a represented government official “with respect to an
20

6

This Committee is persuaded that Alaska Professional Conduct Rule 4.2
and its commentary should be interpreted in the way the ABA Ethics
Committee interpreted Model Rule 4.2: to strike a balance between protecting
government officials against direct communications from opposing counsel and
protecting individuals’ rights to petition the government.21
The Committee believes that an absolute ban on direct communications
with government officials represented in litigation goes too far as a matter of
policy because it infringes on the right to petition the government through
counsel, and such a view disregards the clear language of the commentary to
Rule 4.2.
On the other hand, the Committee also believes that the cautions
expressed in ABA Ethics Opinion 97-408 and by commentators are justified.
Many government officials are inexperienced in litigation, they may not be fully
informed about the facts of the litigation, and they may not fully understand
the implications of discussing a matter directly with opposing counsel, rather
than through their own attorney. Relaxing the no-contact rule too greatly
could allow lawyers to take advantage of government officials who are willing to
talk with them.
A good balance is reached by ABA Ethics Opinion 97-408, under which
the lawyer who intends to contact a government official represented in litigation
first must advise opposing counsel of the substance of the intended
communication and must limit the communication to matters of policy. The
requirement of reasonable advance written notice of the intended
communication ensures that the government’s litigation attorney has the
opportunity to advise the government official about whether to schedule a
meeting or to read and respond to a letter from the opposing attorney; at the
same time, the rule ensures that a government attorney cannot block the
government official from making his or her own decision about receiving a
direct communication from opposing counsel on a matter of policy related to
the ongoing litigation. The restrictions also ensure that the non-government

issue of general policy”); Geoffrey C. Hazard & Dana Remus Irwin, Toward a
Revised 4.2 No-Contact Rule, 60 HASTINGS L.J. 797, 818-22 (2009).
Even without this opinion, an attorney in litigation against the
government clearly may ask the government’s litigation counsel to ask his
client, the government official, for an opportunity to meet to discuss settlement
or other policy related to the litigation; ordinarily, such a request should be
conveyed to the client. An attorney must relay a specific settlement proposal.
See Alaska Professional Conduct Rules 1.2(a), 1.4(a) & (b), and accompanying
comments.
21

7

attorney does not use the informal communication as a substitute for formal
discovery; gathering facts or admissions is forbidden.22
Although the Committee is persuaded by the policy and reasoning of the
middle-ground approach reflected in ABA Ethics Opinion 97-408, the
Committee does not write on a clean slate in 2017. Before ABA Ethics Opinion
97-408 was issued, this Committee adopted an opinion embracing a stricter
rule. In Ethics Opinion 94-1, the Committee was asked whether it is ethically
permissible for an attorney who represents a party in litigation against a
government agency to make a presentation to the managing board of the
agency in order to set forth the client’s settlement position, without having first
received consent from the agency’s litigation attorney. The Committee
concluded that such a presentation would violate Rule 4.2.23 The Committee
was influenced by the commentary of that time, which matched the
commentary to Model Rule 4.2 at the time.24 Unlike the ABA Ethics
Committee, this Committee interpreted the commentary narrowly, reading it to
allow a party – but not a lawyer for a party – to petition the government during
litigation.25 However, the Committee also concluded that, if a government
official involved in litigation requested the attorney for the opposing party to
make a presentation on the matter being litigated, then the attorney ethically
could attend a meeting and speak with the official so long as the attorney gave
advance notice of the invitation to the government official’s counsel and
provided a copy of any material the attorney planned to present to the official.26
The Committee now finds several bases for rejecting the narrow
conclusion of Ethics Opinion 94-1. First, the Committee in 1994 did not have
This opinion, authorizing limited contact with a representative of the
opposing party in litigation, does not authorize ex parte contact with an
adjudicator, even in an administrative proceeding where the same person, such
as a Commissioner, is both the adjudicator and a person with managerial
responsibility for the state agency that is a party in the proceeding.
22

23

See Ethics Opinion 94-1 at 1.

That is, the Alaska commentary to Rule 4.2 in 1994 contained the
sentence “Communications authorized by law include, for example, the right of
a party to a controversy with a government to speak with government officials
about the matter,” and not the substitute sentence adopted in 2002:
“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.” (Emphases added.) See Ethics Opinion
94-1 at 2.
24

25

See Ethics Opinion 94-1 at 2-5.

26

See id. at 6.
8

the benefit of the analysis in ABA Ethics Opinion 97-408, which, as discussed
earlier, authorized counsel to petition the government on behalf of a client in
litigation even in the face of the then-ambiguous commentary, if two important
restrictions are observed. This Committee in 1994 allowed communications
with similar restrictions if the invitation to communicate was initiated by a
government official, but the Committee did not adopt a comparable middle
ground, such as the ABA Ethics Opinion adopted, when the attorney and her
client wished to initiate the direct communication.27
Second, and more important, the commentary to Rule 4.2 has changed
since Ethics Opinion 94-1 was adopted. The current Alaska commentary
tracks the revised commentary to Model Rule 4.2 and now unambiguously
refers to the client’s right to petition the government through counsel.
Third, with the benefit of hindsight, the Committee finds that Ethics
Opinion 94-1 has some shortcomings that should limit its applicability. That
opinion cites Walters v. National Association of Radiation Services28 as support
for the conclusion that the right to petition the government does not include
the right to petition through counsel.29 However, Walters holds only that a
federal statute violated neither the due process clause nor an individual’s right
to access the courts when it limited to $10 the fee that could be paid to a
lawyer representing a client in proceedings before an agency.30 The case is not
persuasive precedent for restricting the right of clients in litigation to use their
counsel to petition the government to settle a case, after the clients engaged
counsel to represent them in litigation against the government.
Despite these criticisms, the Committee respects, agrees with, and
reaffirms much that is stated in Ethics Opinion 94-1 about the values
expressed by Rule 4.2 and the importance of abiding strictly by the Rule when
an attorney wishes to obtain information from a government official with
managerial responsibility regarding the facts at issue in pending litigation.
However, the Committee now formally disavows the conclusion of Ethics
Opinion 94-1 and substitutes the conclusion of ABA Ethics Opinion 97-408: an
attorney for a party in litigation against a governmental body may contact a
represented government official to discuss policy related to the litigation,
including whether to settle the case or to pursue an appeal, provided the
The RESTATEMENT (THIRD) OF THE LAW GOVERNING LAWYERS § 101A, cmt. b,
cites Alaska’s Ethics Opinion 94-1 as an outlier for taking the position “that
the general anti-contact rule applies to all dealings with an employee of a
represented government agency.”
27

28

473 U.S. 305 (1985).

29

See Ethics Opinion 94-1 at 4.

30

See 473 U.S. at 320-35.
9

attorney first gives reasonable advance written notice of the substance of the
intended communication to the government official’s litigation counsel and
limits the communication to policy matters.
Inconsistent language in Ethics Opinion 71-1 also must be considered.
That opinion reflects this Committee’s first attempt to address the question of
which government officials are “parties” in a suit between citizens and a
governmental body. To a large extent, it is the predecessor of Ethics Opinion
2011-2, which discusses how to determine which employees have managerial
responsibility; those conclusions in Ethics Opinion 71-1 are not implicated by
the analysis in this opinion.31 However, Ethics Opinion 71-1 also contains
some very broad language about communications regarding litigation with the
government officials who are the decision-makers regarding that litigation.32
That language is inconsistent with the conclusions of this opinion, and, to that
limited extent only, Ethics Opinion 71-1 also must be disavowed and its
analysis superseded by this opinion.
To answer squarely the question presented at the outset, the Committee
concludes that, provided Attorney first gives reasonable advance written notice
of the substance of the intended communication to the Assistant Attorney
Generals who are handling the litigation, Attorney then may write to the
Commissioner personally, or call the Commissioner’s office to attempt to make
an appointment to speak in person about policy, so that Attorney then can
convey directly the reasons the client believes the State should not appeal the
adverse judgment. To be “reasonable,” the advance written notice typically will
identify the specific government official to be contacted, the date of the
proposed contact, and the substance of the intended communication, and it
will be sent far enough in advance of the proposed contact that the government
attorney has the opportunity to give advice to the official on how to respond to
the contact.
The Committee notes that, in the situation presented, the person to
whom counsel wishes to speak – the Commissioner – has “managerial
responsibility on behalf of the organization” and has the authority, on her own
or in conjunction with others, to take or to recommend the action that Attorney
requests for settling or concluding the case.33 Further, because the superior
31

See Ethics Opinion 71-1 at 1-4.

32

See, e.g., id. at 3, 4 (final sentence of opinion).

To be very clear, this opinion does not intend to suggest that the
Commissioner is necessarily the only person with “managerial responsibility”
for the State in the hypothetical example. Attorneys must review the opinions
cited in footnote 2 above to determine for a particular case who qualifies as a
representative of the governmental party in litigation.
33

10

court litigation has concluded, there is little risk that the communication could
be used for improper fact-finding. Thus, Attorney would be representing his
client in exercising the client’s right to petition the government, and, because
the communication is “authorized by law,” the communication would not
violate Rule 4.2. Attorney must, however, restrict his communications to policy
matters – i.e., those that fairly fit within the constitutional right to petition the
government; he may not use the conversation to gather facts, and he must
abide by all other ethics rules, including the prohibition on false and
misleading statements.34
Approved by the Alaska Bar Association Ethics Committee on April 6, 2017.
Adopted by the Board of Governors on September 7, 2017.

34

See Professional Conduct Rule 8.4(c).
11