Can a lawyer suing a government entity interview that entity's employees about the case without the government lawyer's consent?

Plain-English summary

The Committee was asked whether a lawyer engaged in litigation against a governmental entity may communicate with an employee of that entity on a subject related to the litigation without the consent of the government's lawyer. Because the Alaska Supreme Court had not yet promulgated the Code of Professional Responsibility, the opinion treated the Canons of Professional Ethics as the governing authority but also addressed the question under the Code.

The opinion surveyed two lines of ABA authority interpreting Canon 9. Older opinions drew a strict line between parties and their employees, permitting counsel to interview a party's employees about the facts in dispute without opposing counsel's permission, so long as no misrepresentation was made about the interviewer's identity or purpose. More recent opinions, often involving insurance adjusters negotiating settlement, treated employees who represent the entity as to the matter in controversy as if they were the party, so no contact should be made without opposing counsel's consent.

The opinion concluded that attorneys may ethically communicate with employees of a governmental entity, so long as the communication is not with employees who may reasonably be thought of as representing the entity in matters relating to the controversy, and the lawyer reveals his identity, his representation, and the connection between that representation and the communication. On the problem that a government entity is in a sense always represented, the opinion read DR 7-104(A)(1)'s phrase "in that matter" to mean that until the government's attorney has begun active participation, opposing counsel may proceed as if the entity were unrepresented.

Currency note

This opinion was issued in 1971, before the Alaska Bar Association's adoption of the Alaska Rules of Professional Conduct (it applies the former Canons of Professional Ethics, and addresses the then-unpromulgated Code of Professional Responsibility) and before the 2009 revisions to those rules. The no-contact rule has since been recodified as Rule 4.2. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific point mentioned here.

Common questions

Q: Which government employees can a lawyer interview without the government's attorney present?

A: The opinion concluded a lawyer may interview employees except those who may reasonably be thought of as representing the entity in matters relating to the controversy.

Q: What must the lawyer disclose when making contact?

A: Per the opinion, the lawyer must reveal his identity, his representation, and the connection between that representation and the communication.

Q: A government is always represented by counsel; does that bar all contact?

A: No. The opinion read DR 7-104(A)(1)'s "in that matter" language to mean that until the government's attorney has begun active participation, opposing counsel may proceed as if the entity were unrepresented.

Background and rules framework

The opinion applied former Canon 9 (negotiations with an opposing party) and Canon 39 (interviewing witnesses) of the Canons of Professional Ethics, and DR 7-104(A)(1) of the Code of Professional Responsibility. Those subjects are now treated by Model Rule 4.2 (communication with a represented person). The opinion relied on Drinker's Legal Ethics and the trend in ABA opinions.

Citations and references

Rules of Professional Conduct (former Canons/Code; cf. Model Rules):

• Canon 9 (communication with an opposing party); Canon 39 (interviewing witnesses)
• DR 7-104(A)(1) (no contact with a represented party) (cf. Model Rule 4.2)

See also

• Alaska Ethics Op. 84-11: Interviewing a Non-Managerial Government Employee
• Alaska Ethics Op. 72-2: Contacting an Opposing Party Over Counsel's Authority
• Alaska Ethics Op. 98-1: Contact With a Defendant's Insurer

Source

• Landing page: https://alaskabar.org/ethics-discipline/ethics-opinions/adopted-ethics-opinions-chronological/
• Original PDF: https://alaskabar.org/wp-content/uploads/71-1.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.
Ethics Opinion No. 71-1
Propriety of Communication with an Employee of a Governmental Entity
by a Lawyer Engaged in Litigation Against that Governmental Entity.
The Committee has been asked for its opinion on the question of whether
a lawyer engaged in litigation against a governmental entity may communicate
with an employee of that entity on a subject related to the litigation without the
consent of the government's lawyer.
Before responding to this question, the Committee wishes to note that
the Code of Professional Responsibility as adopted by the American Bar
Association and as recommended for adoption to the Alaska Supreme Court by
the Alaska Bar Association at its 1970 convention, has not yet been
promulgated by the Alaska Supreme Court. Therefore, the existing authority for
this opinion must be the Canons of Professional Ethics as originally
promulgated by the Alaska Supreme Court. On the assumption that it would
be helpful to the profession, however, the Committee will also express its
opinion based upon the Code of Professional Responsibility.
The Committee has been unable to locate any opinion, formal or
informal, of the American Bar Association which disposes of the question
posed, with particular reference to governmental entities. Since both Canon
9(see endnote 1) of the Canons of Professional Ethics, and DR 7-104(A)(1)(see
endnote 2) of the Code of Professional Responsibility are expressed in terms of
communication with an opposing party, the obvious problem is to what extent
a party may be equated with its agents or employees. In the opinions of the
American Bar Association and the Committee on Ethics of the Bar Association
of the City of New York, an implicit distinction seems to have developed
between the types of communication which may be engaged in, and the
employees that can be communicated with. In several opinions of the Ethics
Committee of the American Bar Association, all of which are rather old, a literal
interpretation of the Canon was adopted, which strictly observed the
distinction between the parties and employees of parties and therefore held
that counsel was ethically permitted to interview employees of a party
concerning the facts of the matter in dispute without the permission of
opposing counsel, so long as no misrepresentation was made to the employee
concerning the identity of the interviewer or the purpose of the interview. It
should be noted that all of these opinions dealt with situations in which the
interviewer was seeking factual information from the employee. This viewpoint,
even as to persons with authority to bind the entity, seems to have the tacit
approval of Drinker in his treatise on legal ethics. Drinker, Legal Ethics 85
(1935).
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There is a second group of ABA opinions, which tend to be more recent,
which do not draw such a hard and fast distinction between parties and
employees of parties. These opinions, which typically deal with the situation in
which counsel is dealing with an insurance adjuster concerning settlement of a
claim, and therefore have overtones of the Canons dealing with the delegation
of professional responsibility to laymen, indicate that as to this situation, and
as to employees which are representing the entity as to the matter in
controversy, these employees should be treated for purposes of Canon 9 as
though they were parties, and no contact should be made without the consent
of opposing counsel.
In general, it would seem that DR 7-104 (A)(1) would be consistent with
both sets of opinions by the American Bar Association. It should be pointed
out, however, that there is one distinction between the Canons and the Code of
Professional Responsibility in this respect. The interpretation of Canon 9,
dealing with the contact with the opposite party, has been significantly
influenced by Canon 39, which sets out a party's right to interview witnesses.
The Code of Professional Responsibility has no equivalent provision to Canon

39. The Committee does not infer from this, however, any greater restriction
    upon the right of counsel to interview opposing witnesses. Because of the
    structure of the new Code of Professional Responsibility, the Committee is of
    the opinion that no inference should be drawn from this omission.
    In determining the extent to which an employee of the party should be
    treated in the same fashion as the party itself, there are a series of distinctions
    which could potentially be made. The first of these is to distinguish between
    employees of various units of the governmental entity. For example, merely
    because one is engaged in litigation against the United States of America
    involving a tort claim due to activities of the United States Army, counsel
    certainly should not be precluded from talking with employees of the Weather
    Bureau without the consent of opposing counsel. Although questions may arise
    concerning the unit of government which is actually involved, in the litigation,
    these questions must necessary be resolved by examining the intent with
    which a particular contact was made, as well as all the other factors in the
    situation.
    Other potential distinctions in the treatment of the various employees of
    the governmental entity would be to distinguish between management
    personnel, or personnel representing the entity concerning the matter in
    controversy, and non-management personnel. Another distinction might be
    drawn in terms of the purpose behind the contact. For example, contact with
    an employee by counsel for the purpose of interviewing him to establish factual
    matters in the controversy might be permitted, but direct contact by counsel
    which is intended to resolve or propose compromise of the controversy would
    not be permitted. Again, close questions of intent would arise. Other
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distinctions, of course, would be available at the opposite ends of the spectrum,
wherein either all employees would be identified with the party by whom they
were employed, or the distinction between parties and employees of parties
would be literally observed and in no case would an attorney be ethically
prohibited from consulting an employee of an opposing party.
These latter two positions, which would always identify employees with
the party or never so identify them are both easily rejected. In the one case,
since a governmental entity can only function through its employees or agents,
the attorney for the governmental entity would be placed in a totally untenable
position and the functioning of the adversary system of justice would be
significantly impaired. Likewise, if all employees were to be identified with their
employer for this purpose, the investigation of matters in controversy with an
eye to determining the actual facts would be needlessly encumbered.
Attempting to draw a distinction between the type of contact made is
unsupported by either Canon 9 or DR 7-104(A)(1), although it does draw some
support from Canon 39, and should therefore be rejected. This is the position
taken by Drinker. Drinker, supra at 202.
Thus, it is the Committee's opinion, consistent with the developing trend
in the opinions of the American Bar Association, that attorneys may ethically
communicate with employees of a governmental entity, so long as that
communication is not made with employees of the entity who may reasonably
be thought of as representing the entity in matters relating to the matter in
controversy, and as long as the lawyer reveals to the employee his identity and
representation and the connection between the representation and the
communication. This position protects the policy behind Canon 9 and DR 7104 (A)(1), by protecting the adverse party from overreaching and allowing the
widest possible range to the policy behind Canon 39, which is to promote full
investigation into the facts in controversy.
In the Committee's opinion, the subsidiary problem created by litigation
with a governmental entity, which is that it is always, in a sense, represented
by counsel, is sufficiently disposed of by the language of DR 7-104(A)(1). In
some sense, it can be said that a governmental entity is always represented by
counsel concerning matters in controversy, because specific attorneys are
charged with that representation. Thus, for example, the United States is
always represented by the United States Attorney, as the state of Alaska is
represented by its Attorney General. However, the terms of DR 7-104 (A)(1) that
make it applicable only when a lawyer is representing a party "in that matter",
appears to the Committee to mean that until the government's attorney has
begun active participation in the matter, opposing counsel may proceed as if
the government were unrepresented. The Committee also believes that this is a
fair interpretation of Canon 9, although the point is not covered explicitly.
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This, the Committee's answer to the question posed is that a lawyer is
ethically permitted to communicate with employees of a governmental entity
concerning a matter in controversy between the party represented by the
lawyer and the governmental entity, so long as that communication is not
made with employees of the entity who may reasonably be thought of as
representing the entity in matters related to the matter in controversy, and
assuming that full disclosure of the lawyer's representation and the connection
of that representation to the communication is made.
Adopted by Board of Governors on April 14, 1971.
Endnotes:
Endnote #1:
Canons of Professional Ethics

9. Negotiations With Opposite Party.
   A lawyer should not in any way communicate upon the subject of
   controversy with a party represented by counsel; much less should he
   undertake to negotiate or compromise the matter with him, but should deal
   only with his counsel. It is incumbent upon the lawyer most particularly to
   avoid everything that may tend to mislead a party not represented by
   counsel, and he should not undertake to advise him to the law.
10. Witnesses.
    A lawyer may properly interview any witness or prospective witness for the
    opposing side in any civil or criminal action without the consent of opposing
    counsel or party. In doing so, however, he should scrupulously avoid any
    suggestion calculated to induce the witness to suppress or deviate from the
    truth, or in any degree to affect his free and untrammeled conduct when
    appearing at the trial or on the witness stand.
    Endnote #2 Code of Professional Responsibility
    DR 7-104 Communicating With One of Adverse Interest.
    (A) During the course of his representation of a client a lawyer shall not:
    (1) Communicate or cause another to communicate on the subject of the
    representation with a party he knows to be represented by a lawyer in that
    matter unless he has the prior consent of the lawyer representing such
    other party or is authorized by law to do so.
    4

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