May a lawyer interview a government agency's non-managerial employee about the subject of pending litigation without the consent of the government's attorney?

Plain-English summary

The Committee was asked whether Ethics Opinion 71-1, on communications with employees of parties, barred a lawyer for a public interest organization, suing the Legislative Affairs Agency and three employees over access to the Legislative Teleconference Network, from interviewing the Juneau Teleconference Manager, who was not a defendant, without the consent of the defendants' counsel. The opinion analyzed the no-contact rule, DR 7-104(A)(1), which bars a lawyer from communicating about the subject of the representation with a party the lawyer knows to be represented, absent the other lawyer's consent or authorization by law, and noted that Opinion 71-1 had read those rules to permit communication with a governmental entity's employees so long as they are not employees who may reasonably be thought to represent the entity in the matter, with full disclosure of the lawyer's representation.

The opinion observed that the no-contact rule had since been adopted in substantially the same form as Model Rule 4.2 (1983), whose comment supported Opinion 71-1 and added guidance: for an organization, the rule bars contact with persons having managerial responsibility, with anyone whose act or omission in the matter may be imputed to the organization for civil or criminal liability, and with anyone whose statement may constitute an admission by the organization; if an employee has separate counsel, that counsel's consent suffices. The comment also referred to Model Rule 3.4(f), which limits a lawyer's ability to ask a non-client to refrain from giving information unless the person is a relative, employee, or agent of a client and the lawyer reasonably believes the person's interests will not be adversely affected.

Applying those standards to the manager's job description, the opinion concluded she was not a person who could reasonably be thought to represent the agency in the matter, did not have managerial responsibility for the agency or the network, and that her acts or statements would not be imputed to or constitute an admission by the organization; indeed, the state's answer denied that her representations accurately reflected network policy. The Committee therefore concluded plaintiff's attorney may seek to interview her without the defendants' counsel's consent, and that, conversely, the defendants' attorney may request her to refrain from being interviewed or giving information, since her interests appeared aligned with the defendants' and would not be adversely affected. Whether an employee may reasonably be thought to represent an entity is a fact-specific determination, so the result was limited to the facts presented.

Currency note

This opinion was issued in 1984, before the Alaska Bar Association's adoption of the Alaska Rules of Professional Conduct (it applies the former Code of Professional Responsibility while noting the then-new Model Rule 4.2) and before the 2009 revisions to those rules. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule or requirement mentioned here.

Common questions

Q: May a lawyer interview a government employee about litigation without the agency attorney's consent?

A: The opinion concluded a lawyer may interview a non-party government employee who cannot reasonably be thought to represent the agency in the matter and whose acts or statements would not bind it, without the agency attorney's consent.

Q: Which government employees are off limits for ex parte contact?

A: The opinion, following the Model Rule 4.2 comment, treated as off limits employees with managerial responsibility, those whose acts or omissions in the matter may be imputed to the organization, and those whose statements may be an admission by the organization.

Q: May the agency's attorney tell the employee not to talk to opposing counsel?

A: The opinion concluded the defendants' attorney may ask the employee to refrain from being interviewed or giving information, where the employee is an agent of the client and the employee's interests would not be adversely affected.

Background and rules framework

The opinion applied the no-contact rule, DR 7-104(A)(1) of the former Code (the subject now governed by Model Rule 4.2), as interpreted in Alaska Ethics Opinion 71-1 and Canon 9, and read it together with the comment to Model Rule 4.2 and Model Rule 3.4(f) (requesting a non-client to refrain from giving information). The governing question is whether the employee can reasonably be thought to represent the organization in the matter or to bind it.

Citations and references

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

• DR 7-104(A)(1) (communication with a represented party) (cf. Model Rule 4.2)
• Canon 9 (former Code)
• Model Rule 4.2 and its comment (organizational contacts); Model Rule 3.4(f) (requesting a non-client to refrain from giving information)

Other opinions cited:

• Alaska Ethics Opinion 71-1: communications with employees of a governmental entity

See also

• Alaska Ethics Op. 90-1: Contacting a Represented Corporate Board
• Alaska Ethics Op. 91-1: Contacting Former Corporate Employees
• Alaska Ethics Op. 94-1: Contacting a Government Agency Board Under Rule 4.2
• Alaska Ethics Op. 2011-2: Contacting Employees of an Opposing Organization

Source

• Landing page: https://alaskabar.org/ethics-discipline/ethics-opinions/adopted-ethics-opinions-chronological/
• Original PDF: https://alaskabar.org/wp-content/uploads/84-11.pdf

Original opinion text

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

Ethics Opinion No. 84-11
Communication by Attorney with Government Employee Regarding
Subject Matter of Litigation Without Consent of the Government's
Attorney.
The Ethics Committee has been asked whether Alaska Bar Association
Ethics Opinion No. 71-1, relating to communications with employees of parties,
prohibits an attorney from communicating with a governmental employee in
the following circumstances. The attorney, representing a public interest
organization, has commenced suit against the Legislative Affairs Agency and
three of its employees alleging that denial of access to the Legislative
Teleconference Network violates various constitutional rights of the plaintiff.
Plaintiff's counsel wishes to interview the Juneau Teleconference Manager, who
is not a defendant in the lawsuit, without the consent of counsel for the
defendants.
The relevant provision of the Code of Professional Responsibility is DR
79-104(A)(1) which provides as follows:
During the course of his representation of a client, a lawyer shall not:
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.
Ethics Opinion 71-1, which was based upon Canon No. 9 and
interpretations of DR 7-104 (A)(1), which had not yet been adopted by the
Alaska Bar, interpreted the scope of those rules as follows:
[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 and the connection of that representation to
the communication is made. [Emphasis added.]
The prohibition relating to communications by an attorney with a party
represented by counsel have been adopted in substantially the same form in
Rule 4.2 of the Model Rules of Professional Conduct adopted by the American
Bar Association in 1983. The comment to Rule 4.2 supports the position stated
in Opinion 71-1 and provides some additional guidance. That comment
provides in part:

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In the case of an organization, this Rule prohibits communications by a lawyer for
one party concerning the matter in representation with persons having a
managerial responsibility on behalf of the organization, and with any other person
whose act or omission in connection with that matter may be imputed to the
organization for purposes of civil or criminal liability or whose statement may
constitute an admission on the part of the organization. If an agent or employee of
the organization is represented in the matter by his or her own counsel, the
consent of that counsel to a communication will be sufficient for purposes of this
Rule. Compare Rule 3.4(f). This Rule also covers any person, whether or not a
party to a formal proceeding, who is represented by counsel concerning the matter
in question.
Rule 3.4(f), referred to in that comment provides that:
A lawyer shall not:
(f) Request a person other than a client to refrain from voluntarily giving
relevant information to another party unless:
i. That person is a relative or an employee or other agent of a client; and
ii. The lawyer reasonably believes that the person's interests will not
be adversely affected by refraining from giving some information.
The job description of the Juneau Teleconference Manager includes:

1. Contact with legislators.
2. Supervises and trains Juneau Teleconference staff.
3. Responsible for scheduling, preparation of backup materials for
   teleconference.
4. Develops procedures and forms to insure efficient operation.
5. Responsible for routine trouble reporting.
6. Moderates audio and video teleconferences.
7. Explains Division policy for routine questions.
8. Responsible for community development (general publicity, scheduling,
   questions) in Juneau.
9. Reports regularly to Coordinator.
   In coordination with the Anchorage Teleconference Manager, the Juneau
   Manager has a joint responsibility for equipment repair and inventory, and
   moderator update and orientation. The Juneau Teleconference Manager is
   hired by and responsible to the Teleconference Coordinator. In turn, the
   Teleconference Coordinator is responsible for determining teleconference policy,
   supervising teleconference staff, and other matters. The Teleconference
   Coordinator reports regularly to the Director.
   Based on the foregoing, it does not appear that the Juneau Teleconference
   Manager is a person who may reasonably be thought of as representing the
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entity in matters related to the matter in the controversy, nor would she be
thought of as having managerial responsibility on behalf of the Legislative
Affairs Agency or the Teleconference Network. Similarly, it would not appear,
utilizing as a guideline the standards applicable under Rule 4.2 of the Model
Rules of Professional Conduct, that the acts or omissions of the Juneau
Teleconference Manager would be imputed to the Legislative Affairs Agency or
the named defendants for purpose of civil liability or that the employee's
statements would constitute an admission on the part of the organization. In
fact, the answer filed by the state, while admitting certain representations
made by the Juneau Teleconference Manager, specifically denies that those
statements accurately reflected the Legislative Teleconference Network policies
and procedures.
Based on the foregoing, it is the opinion of the Committee that plaintiff's
attorney may seek to interview the Juneau Teleconference Manager without the
consent of the attorney representing the named defendants, and such conduct
will not violate the Code of Professional Responsibility. Conversely, it is the
opinion of the Committee that the attorney for the defendants may request the
Juneau Teleconference Manager to refrain from being interviewed by the
attorney for plaintiff or from voluntarily giving any relevant information to
plaintiff or its attorney. There is no indication that the employee's interest will
be adversely affected by refraining from giving any such information and the
employee's interests, if any, in the context of this litigation, would appear to be
identified with the interests the party defendants.
Whether an employee of an entity may reasonably be thought of as
representing that entity in matters related to the matter in controversy is a
determination that must be made based on the facts and circumstances of
each particular situation. Accordingly, the result reached by the Committee is
limited to the factual situation presented.
Adopted by the Alaska Bar Association Ethics Committee on November 1,
1984.
Approved by the Board of Governors on November 9, 1984.

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