Does Florida's no-contact rule apply to U.S. Department of Justice attorneys who communicate with represented suspects or witnesses?

Plain-English summary

The inquiry was prompted by a 1989 memorandum from the U.S. Attorney General to Justice Department litigators, arguing that a state's version of DR 7-104(A)(1) or Model Rule 4.2 should not be read to bar certain Justice Department communications with represented suspects or witnesses, in covert-contact and multiple-representation situations. The memorandum advanced two reasons: that such communications are "authorized by law" and so excepted, and that the Supremacy Clause prohibits states from interfering with Justice Department attorneys' duties.

The committee set out Florida Rule 4-4.2, noting two differences from the ABA Model Rule: the Florida rule governs communication with "a person" rather than a "party" (a deliberate broadening), and, more importantly, the Florida rule does not contain the "or is authorized by law" exception found in the ABA rule. The committee concluded that Rule 4-4.2 applies to all Florida Bar members, including Justice Department attorneys, and declined to read in any exception, noting that the Florida Supreme Court has applied the rule to prosecutors in Suarez v. State.

The committee rejected both memorandum arguments. The "authorized by law" exception is absent from the Florida rule. The Supremacy Clause argument failed because the Florida Rules govern attorneys in all three Florida federal districts and so are considered federal law, and because, following United States v. Klubock, a Supremacy Clause problem would arise only if the state rule created an actual conflict with federal law. The committee acknowledged the memorandum's concerns but explained how the rule can be applied to minimize them, noting that the rule is triggered only when the attorney knows the person is represented in the particular matter, and that not all corporate employees are represented by corporate counsel for purposes of the rule. The opinion was adopted by unanimous vote.

Currency note

This opinion was issued in 1990, before The Florida Bar's adoption of the 2006 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 Treat this page as historical context, not current guidance.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: Does the no-contact rule apply to federal prosecutors in Florida?

A: The opinion concluded that Rule 4-4.2 applies to all members of The Florida Bar, including Justice Department attorneys, and that the rule contains no exception for particular categories of attorneys.

Q: Why doesn't the "authorized by law" exception help DOJ attorneys?

A: The opinion stated that Florida's Rule 4-4.2, unlike the ABA Model Rule, does not contain the "or is authorized by law" exception that the Attorney General's memorandum relied on.

Q: Does the Supremacy Clause exempt Justice Department attorneys?

A: No. The opinion concluded that because the Florida rules have been adopted by all three Florida federal district courts they are considered federal law, and that, following United States v. Klubock, a Supremacy Clause problem arises only if the state rule actually conflicts with federal law.

Background and rules framework

The opinion interprets Florida Rule 4-4.2 (Model Rule 4.2), which bars a lawyer who represents a client from communicating about the subject of the representation with a person the lawyer knows is represented by another lawyer in the matter, absent that lawyer's consent. The committee compared the Florida rule to ABA Model Code DR 7-104(A)(1) and ABA Model Rule 4.2, and considered the Supremacy Clause of the U.S. Constitution and the federal district courts' adoption of the Florida rules.

Citations and references

Rules of Professional Conduct:

• Fla. Rule 4-4.2 / Model Rule 4.2 (communication with person represented by counsel)
• ABA Model Code DR 7-104(A)(1)

Cases:

• Suarez v. State, 481 So. 2d 1201 (Fla. 1985)
• United States v. Hvass, 355 U.S. 570, 78 S. Ct. 501 (1958)
• United States v. Klubock, 639 F. Supp. 117 (D. Mass. 1986), aff'd 832 F.2d 664 (1987)

Other opinions cited:

• Fla. Ethics Ops. 78-4, 87-2, 88-14; Alabama Op. 89-108

See also

• FL Bar Ethics Op. 09-1: Communicating With a Represented Government Agency
• FL Bar Ethics Op. 94-4: Communicating With a Partially Represented Pro Se Party
• FL Bar Ethics Op. 94-2: Prosecutor Advising Crime Victims on a Restitution Lien

Source

• Landing page: https://www.floridabar.org/etopinions/etopinion-90-4/
• Original PDF: https://www-media.floridabar.org/uploads/2017/04/FL-Bar-Ethics-Op-90-4.pdf

Original opinion text

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

FLORIDA BAR ETHICS OPINION
OPINION 90-4
July 15, 1990
Advisory ethics opinions are not binding.

Florida Rule 4-4.2 (communication with person represented by counsel) contains no exception for activities of U.S. Department of Justice attorneys.

RPC: 4-4.2
Opinions: 78-4, 87-2, 88-14; Alabama Opinion 89-108
Cases: Suarez v. State, 481 So.2d 1201 (Fla. 1985); United States v. Hvass, 355 U.S. 570, 78 S.Ct. 501 (1958); United States v. Klubock, 639 F.Supp. 117 (D.Mass. 1986), aff'd 832 F.2d 664 (1987)
Misc: Supremacy Clause, U.S. Constitution; Rule 1-3.2(a), Rules Regulating The Florida Bar; ABA Model Code DR 7-104(A)(1); ABA Model Rule 4.2; Rule 4(K)(1), General Rules of the U.S. District Court for the Northern District of Florida; Rule 2.04(c), Rules of the U.S. District Court for the Middle District of Florida; Rule 4B., Rules of Disciplinary Enforcement for the Southern District of Florida

A member of The Florida Bar has requested the Committee's view regarding the applicability of Rule 4-4.2 to attorneys employed by the United States Department of Justice. The member's inquiry was prompted by a 1989 memorandum issued by the United States Attorney General to all Justice Department litigators. In that memorandum, the Attorney General expressed his belief that DR 7-104(A)(1) of the ABA Model Code of Professional Responsibility and its successor, Rule 4.2 of the ABA Model Rules of Professional Conduct, should not be read in an "expansive" way that would prohibit certain Justice Department communications with suspects or witnesses who are represented by counsel. The memorandum stated that the issue of the applicability of these rules has arisen in primarily two situations: (1) covert contacts (or, less frequently, overt interviews) with a suspect after the suspect has retained counsel; and (2) multiple representation situations (i.e., where a single attorney purports to represent either several individuals or a corporation and all of its employees).

The memorandum advances two primary reasons why a state's version of DR 7-104(A)(1) or Rule 4.2 should not apply to Justice Department attorneys in the above situations. First, the memorandum asserts that such communications are expressly excepted from those rules because they are "authorized by law." Second, the memorandum states that the Supremacy Clause of the United States Constitution prohibits states from interfering with Justice Department attorneys in the performance of their duties.

The relevant Florida Rule of Professional Conduct is Rule 4-4.2, Rules Regulating The Florida Bar, which provides:

In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer.

Florida's Rule 4-4.2 differs in two significant respects from the corresponding ABA Model Rule. The Florida rule governs communication with "a person" represented by counsel, while the ABA rule applies to communication with a represented "party." (The Report of the Florida Bar Special Study Committee on the Model Rules of Professional Conduct indicates that this change was a deliberate one, designed to broaden the scope of the rule.) And, more importantly in the Committee's view, the Florida rule does not contain the "or is authorized by law" exception that is found in the ABA rule.

The Committee is of the opinion that Rule 4-4.2 applies to all members of The Florida Bar (as well as to those nonmembers practicing in Florida pursuant to Rule 1-3.2(a)), including Justice Department attorneys in the situations described in the memorandum. Rule 4-4.2 contains no exceptions for particular categories of attorneys and the Committee declines to read into the rule any such exceptions. Moreover, the Supreme Court of Florida has stated that the rule applies to the conduct of prosecutors in criminal cases. See Suarez v. State, 481 So.2d 1201 (Fla. 1985).

The two arguments advanced in the memorandum do not compel the Committee to reach a different conclusion. As noted, Florida Rule 4-4.2 does not contain the exception for communications "authorized by law" that is relied upon so heavily in the memorandum. Furthermore, the Supremacy Clause argument is not persuasive for two reasons. In the federal district courts for all three Florida districts (Northern, Middle, and Southern Districts), the Florida Rules of Professional Conduct govern the conduct of attorneys admitted to those federal bars. See Rule 4(K)(1), General Rules of the U.S. District Court for the Northern District of Florida; Rule 2.04(c), Rules of the U.S. District Court for the Middle District of Florida; Rule 4B., Rules of Disciplinary Enforcement for the Southern District of Florida. Because Florida Rule 4-4.2 has been adopted by those federal courts, it is considered federal law. See United States v. Hvass, 355 U.S. 570, 574–75, 78 S.Ct. 501, 504 (1958). Thus there can be no Supremacy Clause problem in applying Rule 4-4.2 to the activities of Justice Department attorneys practicing in Florida.

Additionally, the Committee is of the opinion that the Supremacy Clause argument is unpersuasive for the reason expressed by the federal district court in United States v. Klubock, 639 F.Supp. 117, 126 (D.Mass. 1986), aff'd 832 F.2d 664 (1987). In evaluating a claim by federal prosecutors that a state court rule was invalid under the Supremacy Clause, the court stated that regulation of the legal profession is a proper exercise of state power and that a Supremacy Clause problem would arise only if the state's rule regulated the federal attorneys' conduct in a manner that created an actual conflict with some provision of federal law.

The Committee acknowledges the potential problems raised in the memorandum, but believes that Rule 4-4.2 can be applied in a manner that minimizes or eliminates those concerns. In covert investigation situations, for example, applying the rule according to its express terms should not impede most covert investigations. A Justice Department attorney's knowledge that a person is represented in connection with a particular matter is required before the rule is triggered. In the case of an undercover investigation, it seems unlikely that the typical suspect will be represented with respect to that particular matter because at that time he or she usually will not be aware that there is a "matter." The memorandum also raises the concern that career criminals will retain "house counsel" in an effort to use Rule 4-4.2 to frustrate investigations. The Committee believes that a relatively small number of criminals have "house counsel" on permanent retainer; with respect to those few who do, it can be argued that the rule would not be triggered until the suspect referred the particular matter in question to his or her "house counsel." (In this respect, the committee notes that its Opinion 78-4, concerning communication with someone's general counsel, should be limited to the civil context.)

Regarding multiple representation situations, the Committee's previous opinions clearly indicate that not all corporate employees are considered to be represented by the corporation's counsel for purposes of Rule 4-4.2. See Opinions 78-4; 87-2. See also Comment to Rule 4-4.2; Opinion 88-14. With regard to conflict of interest situations (e.g., where a corporate employee believes that corporate counsel is not representing his or her interests, or where one of several individuals represented by a single attorney believes that the attorney is not representing his or her interests), the Committee agrees with the position expressed by the Alabama State Bar Disciplinary Commission in its Opinion 89-108. In that opinion, the Commission concluded that it was not unethical for a federal prosecutor, despite corporate counsel's objections, to communicate directly with a corporate officer about possible criminal conduct in which the officer and the corporation had engaged after the officer's personal attorney had initiated contact with the prosecutor and had given permission for the communication.

This opinion was adopted by unanimous vote of the Committee.