Can a legal services lawyer write a state official directly about a client's treatment without going through the Attorney General?

Plain-English summary

The opinion addressed a staff lawyer for a non-profit legal services group who, on behalf of a state prison inmate, wrote the warden citing legal authority, arguing the institution had denied the inmate's constitutional rights, and asking the warden to conform to the inmate's demands, all without first seeking approval from the Attorney General's office that represents the State. The Board treated this as raising the application of Standard 47, which bars communicating about the subject of a representation with a party the lawyer knows to be represented by counsel, unless the lawyer has the other lawyer's prior written consent or is authorized by law.

The Board concluded that Standard 47 does not apply, for two reasons. First, the communication is authorized by law: the First Amendment's petition clause gives a person, including a lawyer representing an incarcerated person, the right to communicate a legitimate grievance directly to the government agency involved, which falls within the standard's "authorized by law" exception. Second, the government is not an adverse party in this situation; the purpose of government is to protect its people, including those in its custody, so the agency has its own interest in addressing the concerns raised even if it has competing interests.

The Board reinforced the point by reference to DR 7-103, which obligates government lawyers not to institute charges unsupported by probable cause, reflecting the government's interest in protecting its citizens as paramount to any interest in being protected from them. It noted the opinion does not address Standard 48 (advice to an unrepresented person), because the lawyer knew the institution was represented by the Attorney General, and suggested the lawyer consider providing copies of the communication to the State's lawyer while maintaining the integrity of the profession under Canon 1.

Currency note

This opinion was issued in 1998, before the State Bar of Georgia adopted the Georgia Rules of Professional Conduct in 2001, which replaced the Code of Professional Responsibility and Standards of Conduct this opinion construes. The State Bar's headnotes map Standard 47 to Rule 4.2(b)(1), Standard 48 to Rule 1.7(a), and DR 7-103 to Rule 3.8(a). Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against the current Rules of Professional Conduct before relying on any specific rule mentioned here.

Common questions

Q: Can a legal services lawyer write a warden directly about an inmate-client's treatment?

A: Yes, under this opinion. The Board held the communication is authorized by law under the First Amendment right to petition and that the State is not an adverse party in that situation, so Standard 47 does not bar it.

Q: Does the lawyer need the Attorney General's consent first?

A: No. The opinion concluded the "authorized by law" exception applies, so the lawyer need not obtain the consent of the lawyer representing the agency, though the Board suggested considering providing copies to the State's lawyer.

Q: Why isn't the State treated as a represented adverse party?

A: The opinion reasoned that the government's purpose is to protect its people, including those in its custody, so the agency has its own interest in addressing the grievance; competing interests alone do not make the government an adverse party.

Background and rules framework

The opinion construed former Standard of Conduct 47 (communication with a represented party, with an "authorized by law" exception), Standard 48 (advice to an unrepresented person), and DR 7-103 (a government lawyer's duty on probable cause), now associated with Rules 4.2(b)(1), 1.7(a), and 3.8(a). It rested on the First Amendment's petition clause.

Citations and references

Rules of Professional Conduct:

• MR 4.2 / Ga. RPC 4.2(b)(1) (communication with a represented person; "authorized by law" exception; former Standard 47)
• MR 3.8 / Ga. RPC 3.8(a) (special responsibilities of a prosecutor; former DR 7-103)

Former standards construed:

• Standards of Conduct 47 and 48; DR 7-103

Constitutional provisions:

• U.S. Const. amend. I (petition clause)

Cases:

• Huddleston v. State, 259 Ga. 45 (1989); Legacy Homes v. Cole, 205 Ga. App. 34 (1992) (formation of the attorney-client relationship)

Other opinions cited:

• ABA Formal Opinion 95-396 (history and purpose of the no-contact rule)

See also

• ABA Formal Op. 97-408: Contacting a Represented Government Agency
• GA Ethics Op. 88-3: Statutory Demand Notice to an Unrepresented Party

Source

• Landing page: https://www.gabar.org/handbook?rule=rule514

Original opinion text

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

State Bar of Georgia

Issued by the Supreme Court of Georgia

On June 1, 1998

Formal Advisory Opinion No. 98-3

For reference to Standard of Conduct 47, please see Rule 4.2(b)(1) .

For reference to Standard of Conduct 48, please see Rule 1.7(a) .

For reference to DR 7-103, please see Rule 3.8(a) .

For an explanation regarding the addition of headnotes to the opinion, click here .

QUESTION PRESENTED:

May a staff lawyer for a non-profit legal services group contact State officials to express concerns about the legality of treatment of non-clients?

SUMMARY ANSWER:

A staff lawyer for a non-profit legal services group may contact State officials to express concerns about the legality of treatment of non-clients and clients alike because such communication is authorized by law and because the State is not an adverse party in that situation.

OPINION:

I. Factual Scenario:

A staff lawyer for a non-profit legal services group (hereinafter "lawyer ") receives information that a state prison inmate is denied a constitutionally protected right by the housing institution. The lawyer contacts the Warden of the institution in writing, notifying the Warden of the situation from the perspective of the inmate. In addition, the writing cites legal authority and argues that the institution has denied the inmate's constitutionally protected rights. In conclusion, the letter asks the Warden to conform to the inmate's demands in light of the legal authority cited in the letter.

The lawyer knows that the Warden is a state official with managerial responsibilities. The lawyer also knows that the State is represented by the Attorney General of the State. The lawyer does not seek approval from the Attorney General's office prior to his correspondence.

II. Ethical and Legal Considerations

The factual scenario raises questions about the application of Standard 47. 1 More particularly, the questions at issue are whether the government is a "party "as contemplated by Standard 47 and whether the communication described falls within the "authorized by law "exception to Standard 47.

Standard 47

During the course of his representation of a client, a lawyer shall not communicate or cause another to communicate on the subject of the representation with a party he knows to be represented by a lawyer in that matter unless he has the prior written consent of the lawyer representing such other party or is authorized by law to do so. A violation of this standard may be punished by a public reprimand.

The factual scenario describes a lawyer's communication with a government agency he knows to be represented by a lawyer, without the prior written consent of the lawyer representing the government agency. While the question presented refers to a "non-client,"the factual scenario describes a situation where the lawyer is offering legal assistance on behalf of a person who presumably requested the assistance. See Huddleston v. State , 259 Ga. 45 (1989) and Legacy Homes v. Cole , 205 Ga. App. 34 (1992) for a description of the formation of the attorney-client relationship. Thus, the communication is the subject of the lawyer's representation of a client.

Because the government is not an adverse party in this situation and because the communication described is authorized by law, Standard 47 does not apply to the factual scenario presented. The communication prohibited by Standard 47 protects an adverse party from overreaching by opposing counsel, protects the attorney-client relationship, and reduces the likelihood that clients will disclose privileged information that could harm their interests. See , ABA Formal Advisory Opinion 95-396 for a description of the history and purpose of similar rules prohibiting such communication.

Standard 47 contemplates a situation where a party might take advantage of another with an adverse interest , through unauthorized communication. However, the factual scenario described above is not such a situation. The purpose of the government is to protect its people, including those it has taken into custody. This fundamental concept is well represented in our laws, including our Bar Rules.

The petition clause of the First Amendment is directly on point in this regard: Congress shall make no law...abridging...the right of the people...to petition the Government for a redress of grievances. The government has a duty to make itself available to those who have legitimate grievances.

The government has a duty to make itself available to those who have legitimate grievances. If a person, even a lawyer representing a person incarcerated by the State, has reason to believe that the State is acting in an oppressive manner, that person has a right to communicate this grievance directly to the government agency involved. To do so is a Constitutionally protected right and thus falls within the "authorized by law "exception to Standard 47.

Even where State officials initiate a clearly adversarial proceeding, lawyers for the State are obligated to protect the interests of the accused. This concept is reflected in Directory Rule DR 7-103:

(A) A public prosecutor or other government lawyer shall not institute or cause to be instituted criminal charges when he knows or it is obvious that the charges are not supported by probable cause.

While the First Amendment and DR 7-103 contemplate different situations, they both incorporate the notion that the government has an interest in protecting its citizens that is a paramount to any interests it has in being protected from them. In the factual scenario provided, the government agency has an interest in addressing the concerns raised by the lawyer. While the government may have competing interests, that alone does not make the government an adverse party.

In summary, a staff lawyer for a non-profit legal services group may contact State officials to express concerns about the legality of treatment of clients because such communication is authorized by law and because the State is not an adverse party in that situation. Regardless of the adversarial nature of the situation, a lawyer should always strive to maintain the integrity of the profession ( Canon 1 ) while representing the best interest of his client, and should consider providing copies of the communication to the State lawyer.

1 This opinion does not address Standard 48 which prohibits a lawyers advice to a person who is not represented by a lawyer where the interests of the person are or have a reasonable possibility of being in conflict with the interests of his client. In the factual scenario described in this opinion, the lawyer knows that the state institution is represented by the Attorney General for the State.