Can a lawyer in litigation against a government agency contact government officials about the dispute without the consent of the government's lawyer?

Plain-English summary

Opinion 340 (published June 2007) interprets D.C. Rule 4.2(d), a District-specific exception to the no-contact rule that is not found in the ABA Model Rules. A government attorney whose agency is frequently in contract disputes asked when opposing counsel may contact the government contracting officer, who has settlement authority, without the government lawyer's consent. The Committee addresses two questions: contact about substantive legal issues with an official in the litigating agency, and contact with officials at other agencies who could affect the government's position.

On the first question, the opinion rejects the inquirer's proposed distinction between permissible contacts about the government's "basic policy position" and impermissible contacts about "substantive legal issues." Comment [11] to Rule 4.2 permits a lawyer to bypass government counsel to present "genuine grievances," such as that the government's basic policy position is faulty or that government personnel are acting improperly, but not for "routine disputes such as ordinary discovery disputes, extensions of time or other scheduling matters." The opinion concludes that substantive legal arguments fall within "genuine grievances," not routine disputes; the reference to a "basic policy position" in the comment is only illustrative (introduced by "such as"), and a policy position is often faulty precisely because it rests on flawed legal arguments. Drawing a line between policy positions and legal arguments would be unworkable and has no textual support. The lawyer must make the disclosures required by Rule 4.2(b): identity and the fact that the lawyer represents an adverse party.

On the second question, the opinion concludes a lawyer may contact officials at other agencies without government counsel's consent. If the official has "authority to redress the grievances of the lawyer's client," the contact falls within Rule 4.2(d) (with the Rule 4.2(b) disclosures). If the official does not have power to bind the agency in the matter, then under Rule 4.2(c) the official is not a represented "party" at all, and the contact is permissible regardless. The opinion builds on prior Opinions 80 (1979) and 280 (1998) and the Jordan Committee's recommendation that the no-contact rule be restricted to non-governmental parties, and it draws the line at routine disputes, which still require consent.

In practice

Under the D.C. rules as they stood at the time of the opinion, a lawyer adverse to a government agency may, under D.C. Rule 4.2(d), contact a government official who has authority to redress the client's grievances, without the government counsel's consent, to raise substantive legal issues or genuine grievances, so long as the lawyer discloses his identity and that he represents an adverse party (Rule 4.2(b)). The opinion concludes the same is true for officials at other agencies who can affect the government's position, and that officials who lack authority to bind the agency are not represented "parties" under Rule 4.2(c).

The opinion concludes that this access does not extend to routine matters such as ordinary discovery disputes, extensions of time, or scheduling, which still require government counsel's consent. Rule 4.2(d) is specific to the D.C. Rules and has no ABA Model Rule counterpart, so verify the current rule and any applicable jurisdiction's version before relying on it.

Common questions

Q: Can a private lawyer suing a government agency contact a government official directly?

A: The opinion concludes yes, under D.C. Rule 4.2(d), where the official has authority to redress the client's grievances and the lawyer discloses his identity and that he represents an adverse party. This exception is unique to the D.C. Rules.

Q: Does that include discussing the substantive legal issues in the case?

A: The opinion concludes yes. Substantive legal arguments are "genuine grievances" under Comment [11], not "routine disputes," so they may be raised without the government counsel's consent.

Q: What contacts still require the government lawyer's consent?

A: The opinion concludes that routine matters, such as ordinary discovery disputes, extensions of time, and scheduling, are not covered by Rule 4.2(d) and require consent.

Q: Can the lawyer contact officials at agencies other than the one being sued?

A: The opinion concludes yes. If the official can redress the client's grievances, the contact is within Rule 4.2(d) (with the required disclosures); if the official cannot bind the agency in the matter, the official is not a represented party under Rule 4.2(c) and the contact is permissible.

Background and rules framework

The opinion interprets D.C. Rule 4.2 (communication with represented persons), in particular Rule 4.2(d), a D.C.-specific exception permitting contact, without counsel's consent, with government officials who have authority to redress a client's grievances, read with Rule 4.2(b) (required disclosures) and Rule 4.2(c) (which officials count as represented "parties"). It relies on Comment [11] and on prior D.C. Opinions 80 (1979) and 280 (1998). The exception has no ABA Model Rule analogue, though Model Rule 4.2, Comment, recognizes contacts "authorized by law."

Citations and references

Rules of Professional Conduct:

• D.C. RPC 4.2, 4.2(b), 4.2(c), 4.2(d), Comment [11] / Model Rule 4.2 (communication with represented persons; the D.C. government-official exception has no Model Rule counterpart)

Other opinions cited:

• D.C. Ethics Ops. 80 (1979), 220, 280 (1998), and 331 (2005)
• ABA Formal Op. 97-408 (communication with a government agency represented by counsel)

See also

• DC Ethics Op. 385: Advising Clients on Contacting Opponents
• ABA Op. 97-408: Contacting a Represented Agency
• ABA Formal Op. 95-396: The No-Contact Rule
• ABA Op. 06-443: Contacting an Organization's Inside Counsel
• RI Ethics Advisory Panel Op. 2000-09: Direct Contact With State Agency Employees Under Rule 4.2

Source

• Landing page: https://www.dcbar.org/for-lawyers/legal-ethics/ethics-opinions-210-present/ethics-opinion-340