May a lawyer request public records from a represented state agency that is adverse to the lawyer’s client?

Plain-English summary

A lawyer sought public records from a state agency that was an adverse, represented party in the client’s claim. The opinion applies Rule 4-4.2 to contact with agency employees who supervise, direct, or consult with its counsel, can bind the agency, or whose conduct may be imputed to it. It says the represented-organization rule covers public as well as private entities.

The rule allows contact without opposing counsel’s consent when authorized by law or court order. The office declines to decide whether public-records law authorizes this request. It also says the lawyer cannot evade Rule 4-4.2 through another person and may seek a court order when uncertain about a contact.

For an agency employee outside the protected categories and otherwise unrepresented, the opinion points to Rule 4-4.3. It also says all conduct in the representation must comply with Rule 4-4.4(a).

In practice

The opinion makes the contact analysis depend on the recipient’s role at the agency and on any law or order authorizing contact. It does not decide whether the public-records law at issue authorizes the proposed request.

Common questions

Q: Are state agencies covered by the represented-organization contact rule?

A: Yes. The opinion says Comment [1] covers both public and private organizations.

Q: Which employees fall within the protected categories?

A: Those who supervise, direct, or consult with agency counsel, can bind the agency, or whose acts or omissions may be imputed to it.

Q: Does the opinion decide whether public-records law authorizes the request?

A: No. It leaves that legal question outside the informal opinion.

Background and rules framework

Rule 4-4.2 and Comments [1], [4] through [7] govern contacts with the represented agency and possible legal authorization. The opinion cites Rule 4-4.3 for other unrepresented recipients and Rule 4-4.4(a) for conduct during representation.

Citations and references

Missouri Rules of Professional Conduct:

• Rule 4-4.2 and Comments [1], [4], [5], [6], and [7]
• Rules 4-4.3 and 4-4.4(a)

See also

• Missouri Informal Op. 2020-10: Former Organization Constituent Contact
• Missouri Informal Op. 2021-11: Contact with Represented Client

Source

• Landing page: https://mo-legal-ethics.org/informal-opinion/2015-07/

Original opinion text

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

Question: May Attorney ethically make a public records request of a state agency where the state agency is an adverse party in a current claim by Attorney’s client against the agency and where the agency is represented by counsel in the matter?

Answer: The prohibition in Rule 4–4.2 of communication by an attorney about the subject of the litigation with a person the lawyer knows to be represented by counsel, absent consent of the other lawyer, or certain exceptions, extends to employees of a represented organization who supervise, direct, or consult with the organization’s lawyer; employees who have authority to bind the organization; and employees whose acts or omissions may be imputed to the organization. Comment [7]. Represented organizations whose employees are protected from contact by the rule include both public and private entities. Comment [1]. To the extent the public records request would constitute communication with an individual in one of the above categories, the communication is governed by Rule 4–4.2. Per Rule 4–4.2, communication by Attorney with represented persons without the other lawyer’s consent is not prohibited where the communication is authorized by law or court order. See also Comments [4] and [5]. Whether any law authorizes Attorney’s client to request the information is a matter outside the scope of an informal opinion. Attorney is prohibited from violating Rule 4–4.2 through the acts of another. Comment [4]. If Attorney is unsure whether a communication with a represented person is permissible, Attorney may seek a court order. Comment [6]. If the person with whom Attorney would be communicating is not an individual in one of the three categories of Comment [7] or otherwise represented, Attorney must take care to ensure the communication complies with Rule 4–4.3. Any conduct in the course of representing a client, including communication, must also comply with Rule 4–4.4(a).