Can a lawyer contact a represented government official directly to discuss a matter without the government attorney's consent?

Plain-English summary

An attorney representing a client in a pending municipal tax assessment case asked whether he could contact one of the City's decision-makers directly, both to discuss policy issues underlying the tax law and to explore settlement of the case, after notifying (but not getting consent from) the City attorney.

The opinion applies Rule 4.2, the "no-contact" rule, which bars a lawyer from communicating about the subject of a representation with a person the lawyer knows to be represented, unless the other lawyer consents or the communication is authorized by law. The committee recognized that a constitutional right to petition the government creates an "authorized by law" exception for some contacts with government representatives, and it surveyed its own prior opinions (Nos. 794, 92-3, 95-12), ABA Formal Opinion 97-408, CBA Opinion 00-01, and Section 110 of the Restatement.

The committee declined to follow ABA Formal Opinion 97-408 and the CBA's view in full. It drew the line where the Restatement does: communications on an issue of general policy are permitted, but communications regarding the negotiation or litigation of a specific claim are prohibited without government counsel's consent. The committee concluded that discussions aimed at settling or resolving the specific tax assessment controversy are not solely policy issues and fall within Rule 4.2's prohibition.

The committee also rejected the ABA and CBA position that a lawyer must give the government's counsel advance notice before making an otherwise-permitted policy contact. It found nothing in Rule 4.2 imposing a notice requirement for communications that are authorized by law; the rule requires consent only for communications that are subject to the no-contact prohibition.

In practice

Under this opinion, an Illinois lawyer in a controversy with a government entity may communicate directly with a represented government decision-maker about general policy issues, including the underlying application of the law, without the consent of or notice to the government's lawyer. The opinion holds that direct communication aimed at settling or resolving the specific pending matter is prohibited under Rule 4.2 unless the government lawyer consents; providing notice without obtaining consent is not enough to authorize that contact.

Common questions

Q: Can an Illinois lawyer talk to a represented city official directly about a pending case?

A: Per the opinion, it depends on the purpose. Contact to discuss general policy issues is permitted as authorized by law under Rule 4.2; contact to negotiate or settle the specific pending claim is prohibited without the city attorney's consent.

Q: Does giving the government's attorney advance notice make the contact permissible?

A: For a contact that is otherwise prohibited (settling the specific matter), no. The opinion concludes that notice without consent is insufficient, and that Rule 4.2 does not impose a notice requirement for communications that are authorized by law.

Q: What is the line between a "policy issue" and the specific matter?

A: The opinion adopts the Restatement's distinction: communications on an issue of general policy are allowed, but communications about the negotiation or litigation of a specific claim are not. Settling a specific tax assessment is not, in the committee's view, solely a policy issue.

Background and rules framework

The opinion interprets Illinois Rule of Professional Conduct 4.2 (Model Rule 4.2), the rule against communicating with a person represented by counsel. The rule's exception for communications "authorized by law" is the hinge: the committee treats the constitutional right to petition the government as the source of that authorization for policy-level contacts with government officials, while keeping specific-claim negotiations within the rule's prohibition.

Citations and references

Rules of Professional Conduct:

• Illinois RPC 4.2 (Model Rule 4.2): communication with person represented by counsel

Other opinions cited:

• ISBA Opinion Nos. 794, 92-3, and 95-12: prior ISBA opinions on contacting government representatives
• ABA Formal Opinion 97-408: contacts with represented government officials and the right to petition
• CBA Opinion 00-01 (2000): Chicago Bar Association following ABA 97-408
• Restatement (Third) of the Law Governing Lawyers, Section 110

See also

• ISBA Ethics Op. 12-13: Representing a Municipality in a Non-Adjudicative Zoning Matter
• NYC Bar Ethics Op. 2007-01: The No-Contact Rule and In-House Counsel
• NYC Bar Ethics Op. 2005-04: Communications With Insurance Adjusters
• NY State Bar Op. 1080: Contacting a Public Official Represented by Counsel
• NY State Bar Op. 1047: Government Lawyer Interviewing a Represented Person's Clients

Source

• Landing page: https://www.isba.org/ethics/opinions/1309