Can a lawyer for a private client contact individual members of a government licensing board directly, without the board lawyer's consent, about the client's matter?
Apply this to your situation
This page answers the general question as of 1998. Ezel answers yours: whether it's allowed on your facts, under the current rules of professional conduct in your state, with citations.
Plain-English summary
Opinion 280 (adopted March 18, 1998) addressed a private practitioner who represented a client dissatisfied with a consent order from a D.C. health professional licensing board concerning the client's chiropractic license. The lawyer believed the board's administrative and legal staff had both driven the outcome and acted improperly, and that many board members were themselves unhappy with the staff. He wanted to contact individual board members about two things: the client's consent order, and the board members' dissatisfaction with the staff and internal operations as they affected his client. The question was whether Rule 4.2(d) let him do so without first obtaining consent of the board's lawyer.
Unlike ABA Model Rule 4.2, the D.C. rule contains an explicit exception in paragraph (d): the no-contact rule "does not prohibit communication by a lawyer with government officials who have the authority to redress the grievances of the lawyer's client," whether or not those grievances relate to the subject of the representation, provided the lawyer makes the disclosures specified in Rule 4.2(b). The committee traced this to a deliberate choice by the D.C. Bar's Board of Governors to treat government parties differently: government officials are presumed capable of resisting improper legal arguments without counsel present, decision-making authority in government litigation is often shared between officials and counsel, the government is supposed to advance the public interest rather than simply win, and a flat bar on contact could infringe the First Amendment right to petition the government for redress of grievances. The committee noted the ABA had itself moved toward this position in Formal Opinion 97-408 (1997), though the ABA opinion's advance-notice requirement was one the D.C. committee declined to adopt.
The committee concluded that both proposed communications fell within paragraph (d). It relied on Comment [7], which says the paragraph gives lawyers access to government decision-makers to present genuine grievances, including the view that the government's basic policy position is faulty or that government personnel are conducting themselves improperly with respect to the dispute. The committee cautioned, again citing Comment [7], that the right is not absolute: paragraph (d) does not allow a lawyer to bypass government counsel on routine procedural matters such as ordinary discovery disputes, extensions of time, or scheduling. Within those limits, the committee found the proposed contacts about the client's consent order and the staff's alleged misconduct were permissible.
Currency note
This opinion was issued in 1998, before the District of Columbia's adoption of the 2007 revisions to the Rules of Professional Conduct. 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, deadline, or requirement mentioned here.
Common questions
Q: Did the lawyer need the board lawyer's consent before contacting board members?
A: No. The committee concluded that under Rule 4.2(d) a lawyer may communicate directly with government officials who can redress the client's grievances without the consent of government counsel, provided the Rule 4.2(b) disclosures are made.
Q: Could the lawyer raise the board staff's alleged misconduct, not just the client's order?
A: Yes. The committee concluded that Comment [7] expressly contemplates presenting the view that government personnel are conducting themselves improperly with respect to the dispute, so both proposed topics were within paragraph (d).
Q: Are there limits on this government-contact exception?
A: Yes. The committee concluded the exception does not let a lawyer bypass government counsel on routine procedural matters such as discovery disputes, extensions of time, or scheduling; those remain with government counsel.
Q: Why does the D.C. rule treat government parties differently from private parties?
A: The committee explained the drafters reasoned that government officials can resist improper arguments without counsel, that decision authority in government litigation is often shared, that the government must serve the public interest, and that barring contact could infringe the First Amendment right to petition for redress of grievances.
Background and rules framework
The opinion interpreted D.C. Rule 4.2(d), the District's distinctive exception to the no-contact rule for communications with government officials who can redress a client's grievances, read together with the disclosure requirement of Rule 4.2(b) and Comment [7]. It situated the rule against ABA Model Rule 4.2, which lacks an explicit government exception, and ABA Formal Opinion 97-408.
Citations and references
Rules of Professional Conduct:
- D.C. RPC 4.2(b), (d) / Model Rule 4.2 (communication with represented persons; D.C. government-official exception)
Other opinions cited:
- D.C. Ethics Op. 80 (contacts with government officials under the prior code); ABA Formal Op. 97-408 (1997)
See also
- DC Ethics Op. 287: Ex Parte Contact With Former Employees
- DC Ethics Op. 295: Guardian ad Litem and the No-Contact Rule
- ABA Formal Op. 502: Pro Se Lawyer and Represented Persons
Source
- Landing page: https://www.dcbar.org/for-lawyers/legal-ethics/ethics-opinions-210-present/ethics-opinion-280
Get today's answer for your situation
You just read a 1998 opinion on this question. Ezel checks the current rules of professional conduct in your state and answers your specific situation, with citations.
Opens in Ezel Pro. Every answer cites the rules it relies on.