Can a lawyer send litigation correspondence directly to a city's mayor and council members when the city is represented by counsel?

Plain-English summary

An attorney corresponding with a city attorney about pending litigation the city had brought against his client was considering sending copies of that correspondence to the mayor, city manager, a department head, and a city council member. The inquiry asked whether sending those copies would violate Rule 4.2, which bars communicating about the subject of the representation with a party known to be represented by counsel, absent the other lawyer's consent or authorization by law.

Assuming the inquiring attorney lacked the city attorney's consent, the opinion concluded it would be improper for him to communicate directly with the represented city officials about the litigation. The opinion explained that communications directly between represented parties are generally not governed by the Rules, and that the comments to ABA Rule 4.2 recognize an exception for communications authorized by law, including a party's right to speak with government officials about a controversy with a government agency, reasoning that elected public servants are accessible to the public in their governmental capacities. But because "party" refers to the client and not the lawyer, the opinion concluded the client could make direct contact with an elected official while the lawyer should not.

The opinion cited Opinion 675 (1980), which allowed an attorney appealing an administrative ruling to obtain public records directly because they were publicly accessible. It cautioned, however, that Rule 4.2 restricts a lawyer even from assisting the client's communication with a represented adverse party, and that the prominent viewpoint is that the lawyer should not assist the client's direct communication with a represented public official. It noted a contrary view that "petitioning of an elected official" is a separate matter that a lawyer could assist while also acting as litigation counsel, described the area as unclear, and urged caution, citing ABA Formal Opinion 92-362 (1992).

Currency note

This opinion was issued in 1992, before Illinois adopted the 2010 Illinois Rules of Professional Conduct. The ISBA Board of Governors affirmed the opinion in January 2010 as generally consistent with the 2010 Rules (pointing to Rule 4.2), while noting the specific standards referenced may differ from the 2010 Rules. 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 or requirement mentioned here.

Common questions

Q: Can a lawyer send litigation correspondence to a sued city's officials directly?

A: The opinion concluded this would violate Rule 4.2 where the officials are represented by counsel and the lawyer lacks the city attorney's consent.

Q: Can the client contact the elected officials directly?

A: The opinion concluded the client, as a party, may contact elected officials directly, because communications authorized by law include a party's right to speak with government officials about a controversy with a government agency.

Q: Can the lawyer at least help the client make that contact?

A: The opinion concluded the prominent view is that the lawyer should not assist the client's direct communication with a represented public official, though a contrary view treats petitioning elected officials as a separate matter; it urged caution.

Background and rules framework

The opinion interpreted Rule 4.2 (communication with a person represented by counsel), including its "authorized by law" exception for a party's contact with government officials, distinguishing the client (a "party" who may make contact) from the lawyer (who should not), and noting the lawyer's restriction on even assisting such contact (Model Rule 4.2).

Citations and references

Rules of Professional Conduct:

• Model Rule 4.2 (communication with represented persons) / Illinois Rule 4.2

Other opinions cited:

• ABA Formal Opinion 92-362 (1992); ISBA Opinion No. 675 (1980) (public access to public records)

See also

• ISBA Ethics Op. 13-09: Contacting Government Officials
• ISBA Ethics Op. 91-21: Contacting the Party's Lawyer

Source

• Landing page: https://www.isba.org/ethics/opinions/9203