When suing a city, can the plaintiff's lawyer talk to the city council or city manager about the lawsuit without the city attorney's permission?

Currency note

This opinion was issued in 1977, before the State Bar of California's adoption of the November 1, 2018 revisions to the Rules of Professional Conduct. The opinion interprets former California Rule 7-103 (communication with a represented party, with its public-officer exception), the predecessor to current California Rule 4.2 and Model Rule 4.2. A publisher's note records that in July 1979 the Board of Governors declined to amend the rule. 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 Treat this page as historical context, not current guidance.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.

Disclaimer: This is an advisory ethics opinion. Advisory opinions are not binding; they interpret the State Bar of California's rules of professional conduct and are persuasive authority. This summary is for research purposes only and is not legal advice. Verify current rules before acting on any specific guidance.

About this page: The plain-English summary and Q&A below were written by Ezel based on the official opinion. The opinion text is reproduced at the bottom; the official source (linked) controls.

View original opinion

Plain-English summary

The committee interpreted former Rule 7-103, which barred a lawyer from communicating with a party known to be represented by counsel about a subject of controversy without that counsel's consent, but which expressly did "not apply to communications with a public officer, board, committee or body." It considered three situations involving a lawyer for a party suing a city: speaking to the city council at a public meeting (with no city attorney present), privately approaching a council member, and privately approaching the city manager or administrative staff.

The committee concluded that in each situation the attorney addressed an individual or body excepted from former Rule 7-103. A city council is a public body, and a council member or city manager is a public officer vested with sovereign authority; such officers remain public officers off the job to the extent of that authority, so it makes no difference whether the lawyer approaches them publicly or privately. The committee added that even if a staff member were not a public official, contact would still be authorized because the staff member is not a party to the action (citing ABA opinion No. 117 (1934)). It noted only that, when appearing before the council, the lawyer should identify himself and, if not privileged, identify his client (ABA EC 7-16). A footnote recorded that the public-officer exception was under study by a Board of Governors committee as of April 30, 1977, and a publisher's note states the Board declined to amend the rule in July 1979.

Common questions

Q: Can a lawyer suing a city contact city council members directly about the case?

A: Yes, under this opinion. The committee concluded council members are public officers within the public-officer exception to former Rule 7-103, so the lawyer may contact them, publicly or privately, without the city attorney's consent.

Q: Does it matter that the city attorney was not present or did not consent?

A: No. Because the communications fell within the public-officer exception, the committee concluded the consent requirement of former Rule 7-103 did not apply.

Q: What about the city manager or staff, who may not be public officers?

A: The committee said contact is authorized either way. If they are public officials the exception applies; if they are not, contact is still allowed because they are not parties to the action.

Background and rules framework

The opinion interprets former California Rule 7-103, which prohibited communicating with a represented party about a subject of controversy without opposing counsel's consent but contained an express exception for communications with a public officer, board, committee, or body. That rule is the predecessor to current California Rule 4.2 and Model Rule 4.2 (communication with a represented person). The committee also referenced ABA EC 7-16 on identifying oneself and one's client when appearing before such a body.

Citations and references

Rules of Professional Conduct:

• Former California Rule 7-103
• ABA Code of Professional Responsibility, EC 7-16
• Current analogs: Model Rule 4.2 / California Rule 4.2

Cases:

• Cleland v. Superior Court (1942) 52 Cal.App.2d 530

Other opinions cited:

• ABA Committee on Professional Ethics opinion No. 117 (1934)

Other authorities:

• Wise, Legal Ethics (1970) p. 292

See also

• CA Ethics Op. 1975-33: Defense Contact With Plaintiff's Treating Physician

Source

• Landing page: https://www.calbar.ca.gov/legal-professionals/ethics-compliance-practice-resources/ethics/ethics-opinions
• Original opinion: https://www.calbar.org/ethics/Opinions/1977-43.htm

Original opinion text

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

THE STATE BAR OF CALIFORNIA
STANDING COMMITTEE ON PROFESSIONAL RESPONSIBILITY AND CONDUCT
FORMAL OPINION NO. 1977-43

ISSUE:

May an attorney discuss a subject of litigation against a city with a public official without consent of the city attorney?

DIGEST:

It is proper for an attorney to discuss a subject of litigation against the city with the city council at a public meeting, with a member of the city council privately, or with the city manager privately, without first obtaining the consent of the city attorney.

AUTHORITIES INTERPRETED:

Rule 7-103 of the Rules of Professional Conduct of the State Bar.

DISCUSSION

The Committee has been asked for an interpretation of rule 7-103 of the Rules of Professional Conduct as it applies to three hypothetical situations. Rule 7-103 of the Rules of Professional Conduct provides:

"A member of the State Bar shall not communicate directly or indirectly with a party whom he knows to be represented by counsel upon a subject of controversy, without the express consent of such counsel. This rule shall not apply to communications with a public officer, board, committee or body."

The hypothetical situations presented are:

1. An attorney representing a party bringing an action against a city attends a meeting of the city council at which members of the council and the city administrative staff are present, but at which the legal counsel for that body is not. The attorney for the party asks to speak to the council and does so on the subject matter of the legal dispute between his client and the city.

2. The same attorney approaches a member of the city council privately and speaks to that council member without first requesting and receiving permission from the city attorney.

3. The same attorney approaches the city manager or other member of the administrative staff and privately discusses the subject matter of the action between the city and his client without permission from the city attorney.

In each hypothetical situation presented, the attorney addresses an individual or body excepted from coverage of rule 7-103 of the Rules of Professional Conduct.

Clearly, a city council is a public body and a member of that council or a city manager are public officers within the meaning of rule 7-103 of the Rules of Professional Conduct. Public officers are vested with authority to exercise some sovereign power. To the extent they have that authority, they remain public officers off the job. For that reason, it makes no difference whether the attorney approaches the official publicly or privately. The subject of conversation (here, apparently, an attempt to influence the response to an action against the city) determines the capacity in which the individual acts. In either case, the restraints of rule 7-103 of the Rules of Professional Conduct do not apply.

There is authority which would distinguish the public official from a government employee, such as a member of the city manager's staff. (See, e.g., Cleland v. Superior Court (1942) 52 Cal.App.2d 530.) For the purposes of this opinion, it is unnecessary to resolve that issue. If the staff members are public officials, the attorney is free to contact them because rule 7-103 of the Rules of Professional Conduct does not apply. If they are not public officials, contact would still be authorized as they are not parties to the action. (See ABA Committee on Prof. Ethics, opn. No. 117 (1934) and Wise, Legal Ethics (1970) p. 292.)

Accordingly, an attorney representing a client who is suing the city may communicate with any public official or the city council about a subject of the litigation without the consent of the city attorney. He should, when appearing before the city council, identify himself and, if not privileged, identify his client. (See ABA Code of Prof. Responsibility, EC 7-16.)

This opinion is issued by the Standing Committee on Professional Responsibility and Conduct of The State Bar of California. It is advisory only. It is not binding upon the courts, The State Bar of California, its Board of Governors, any persons or tribunals charged with regulatory responsibilities, or any member of the State Bar.1

[PUBLISHER'S NOTE: In July 1979, the Board of Governors declined to amend the rule.]

1 Note: As of April 30, 1977, the subject matter of the exception to rule 7-103 of the Rules of Professional Conduct, concerning public officers, boards, committees or bodies was currently under study by a Committee of the Board of Governors of the State Bar of California.