When a government agency is represented by counsel, can a Colorado lawyer contact its officials or employees directly, or does Rule 4.2's no-contact rule apply?

Plain-English summary

Opinion 93 (adopted October 16, 1993; amended February 2016) supplements the Committee's Opinion 69 and addresses ex parte contacts with a government organization represented by counsel under Colo. RPC 4.2. The opinion concludes that the no-contact rule applies with equal force to government bodies: a lawyer generally may not communicate, about the subject of the representation, with a constituent who supervises, directs, or regularly consults with the organization's lawyer on the matter, or who has authority to obligate the organization, absent the consent of the organization's counsel. It also stresses that an organization is "represented" only once it has taken affirmative steps to retain counsel in the specific matter, not merely because it has general or in-house counsel.

The opinion then explains how the "authorized by law" exception in Rule 4.2's comment [5] balances the rule against the constitutional right to petition the government. The Committee concludes that the exception permits ex parte contact with officials acting in a legislative or rulemaking capacity (unless specifically prohibited by law), and with the more limited group of government employees or officials whose statements might be admissions but who lack authority and whose conduct is not at issue in pending litigation or an adversarial proceeding. It recommends that, at the outset of any permissible contact, the lawyer identify himself or herself and state the purpose of the inquiry, consistent with Rule 4.3, and notes that many authorities require notice to government counsel.

The opinion adds limits in adjudicative settings. In judicial or quasi-judicial proceedings (such as zoning or licensing matters), Rule 3.5(b) and due process bar ex parte communication with the decision maker, and Colorado's Administrative Procedure Act (C.R.S. section 24-4-105(14)) and the federal APA restrict ex parte contacts in on-the-record proceedings. The Committee also concludes that blanket "gag" orders forbidding government employees from speaking with opposing counsel are generally impermissible because they can violate the employees' First Amendment rights or preempt permissible ex parte contact, subject to narrow exceptions.

In practice

The opinion holds that, under Colo. RPC 4.2 as the Committee read it, a lawyer dealing with a represented government organization generally may not make ex parte contact with constituents who supervise or can bind the agency on the matter, or whose conduct is at issue in pending litigation, without the agency counsel's consent. It holds that the "authorized by law" exception, grounded in the First Amendment right to petition, permits contact with officials acting in a legislative or rulemaking capacity (absent a specific legal bar) and with lower-level, non-managerial employees whose statements would at most be admissions, and that the lawyer should identify himself and state the purpose at the first contact. It holds that Rule 3.5(b), due process, and the state and federal Administrative Procedure Acts separately restrict ex parte contact with decision makers in judicial and quasi-judicial proceedings, and that blanket bans on government employees speaking to opposing counsel are generally impermissible.

Common questions

Q: Does Rule 4.2 protect a government agency the same as a private organization?

A: Generally yes. The opinion concludes the no-contact rule applies with equal force to a represented government organization, so a lawyer generally may not contact constituents who supervise, direct, or can obligate the agency on the matter without its counsel's consent.

Q: When can a lawyer still contact a government official directly?

A: Under the "authorized by law" exception. The opinion concludes a lawyer may contact officials acting in a legislative or rulemaking capacity (unless specifically prohibited by law), and lower-level non-managerial employees whose statements would only be admissions and whose conduct is not at issue in litigation, reflecting the constitutional right to petition the government.

Q: Is a government agency "represented" just because it has a city attorney or general counsel?

A: No. The opinion concludes an organization is represented under Rule 4.2 only after it takes affirmative steps to retain counsel, or refers the matter to in-house counsel, in the specific matter; a blanket assertion that all employees are represented does not apply.

Q: Can a government tell its employees not to talk to opposing counsel?

A: Generally no. The opinion concludes that blanket "gag" rules forbidding government employees from speaking with an adversary's lawyer are generally impermissible because they can violate the employees' First Amendment rights or preempt permissible ex parte contact, with limited exceptions.

Background and rules framework

The opinion interprets Colo. RPC 4.2 (communication with a person represented by counsel) and its comments, read with Rule 4.3 (dealing with unrepresented persons), Rule 3.4(f) (requesting persons to withhold information), and Rule 3.5(b) (ex parte communication with judges and officials during a proceeding). It builds on the Committee's Opinion 69 on contacting employees of an adverse organization, and reads the "authorized by law" exception against the First Amendment and Article II, Section 24 of the Colorado Constitution, as well as the state APA (C.R.S. section 24-4-105(14)) and the federal APA (5 U.S.C. section 557(d)).

Citations and references

Rules of Professional Conduct:

• Colo. RPC 4.2 / Model Rule 4.2 (communication with represented persons; comments [5], [7])
• Colo. RPC 4.3 / Model Rule 4.3 (dealing with unrepresented persons)
• Colo. RPC 3.4(f) / Model Rule 3.4 (requesting a person to withhold information)
• Colo. RPC 3.5(b) / Model Rule 3.5 (ex parte communication during a proceeding)

Statutes:

• C.R.S. section 24-4-105(14) (Colorado APA restriction on ex parte materials)
• 5 U.S.C. section 557(d)(1) (federal APA restriction on ex parte communications)

Cases:

• Vega v. Bloomsburgh, 427 F. Supp. 593 (D. Mass. 1977), First Amendment right of government employees to speak
• Patriarca v. Ctr. for Living & Working, Inc., 778 N.E.2d 877 (Mass. 2002), organization may not preemptively claim to represent all employees
• Connick v. Myers, 461 U.S. 138 (1983), limits where employee speaks on a matter of personal interest

Other opinions cited:

• ABA Formal Op. 97-408: communication with a government agency represented by counsel
• ABA Formal Op. 95-396: communications with represented persons
• CBA Formal Op. 69: communicating with employees of an adverse party organization

See also

• ABA Formal Op. 97-408: Contacting a Represented Government Agency
• ABA Formal Op. 95-396: Communications With Represented Persons
• CBA Formal Op. 120: Representing an Organization as a Party

Source

• Landing page: https://www.cobar.org/ethicsopinions
• Original PDF: https://www.cobar.org/Portals/COBAR/repository/ethicsOpinions/FormalEthicsOpinion_93_2011.pdf