Can a lawyer contact a city employee, manager, or council member directly about a matter when the city is generally represented by the city attorney?

Plain-English summary

The opinion addressed three scenarios in which a lawyer wanted to contact a city official directly while knowing the city is generally represented by a full-time city attorney.

In the first, a lawyer for a defaulting borrower wanted to ask the city employee who originated a loan whether the city would accept a deed in lieu of foreclosure. The opinion concluded the lawyer may make the contact. Because there was no suggestion the lawyer had received notice of government-lawyer participation in this particular matter, the employee should not be deemed represented by another lawyer within the meaning of Rule 7.4(a)'s no-contact rule. If contact is made, the lawyer must fully disclose his representative capacity, state the reasons for any request, and neither state nor imply that the employee is cloaked with anything other than absolute discretion to respond or not, citing Rule 7.4(c). The second scenario, a lawyer writing the city manager to explore settlement of an employment-discrimination claim, drew the same answer for the same reason: no notice of the city attorney's participation in that particular matter.

The third scenario was different. A lawyer for a former city employee with a pending termination grievance wanted to telephone a city council member to argue the law, complain of unfair treatment, and urge the member to intervene and reinstate the client. The opinion concluded the lawyer may not do so, assuming the elected council member has or might have adjudicatory authority over the matter. Contact about the merits with such an official is ex parte communication barred by Rule 7.10(b), which permits communication as to the merits with a judge or official before whom an adversary proceeding is pending only in the course of official proceedings, in writing with prompt copy to opposing counsel or the adverse party, orally on adequate notice, or as otherwise authorized by law. The opinion added that if the council member neither has nor will have adjudicatory authority over the matter and no notice of the city attorney's active participation has been given, the contact would be proper, subject to the same disclosure obligations under Rule 7.4(c).

Currency note

This opinion was issued in 1993, before the North Carolina State Bar's adoption of the 2003 revisions to the Rules of Professional Conduct. The opinion now carries an editor's note directing readers to Rule 4.2(b) for additional guidance on communications with government officials. 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: Can a lawyer contact a city employee directly when the city has a city attorney?

A: Yes, on these facts. The opinion held that absent notice that a government lawyer is participating in the particular matter, the employee is not "represented" under Rule 7.4(a), so the contact is permitted with full disclosure of the lawyer's role.

Q: Can a lawyer write the city manager to discuss settling a claim before suit?

A: Yes. The opinion gave the same answer as for the city employee, because there was no notice of the city attorney's participation in that particular matter.

Q: Can a lawyer lobby a city council member about the merits of a pending grievance?

A: Not if the member has or might have adjudicatory authority. The opinion held such contact about the merits is improper ex parte communication under Rule 7.10(b).

Q: What must the lawyer disclose when contact is allowed?

A: The opinion held the lawyer must fully disclose his representative capacity, state the reasons for any request, and not state or imply that the official lacks absolute discretion to respond, citing Rule 7.4(c).

Background and rules framework

The opinion applied North Carolina Rule 7.4(a), the no-contact rule for represented parties (corresponding to Model Rule 4.2), Rule 7.4(c) on disclosure when contacting unrepresented government officials, and Rule 7.10(b), barring ex parte communication on the merits with an adjudicative official (corresponding to Model Rule 3.5). The analysis turns on whether a government lawyer is participating in the particular matter and whether the official contacted holds adjudicatory authority.

Citations and references

Rules of Professional Conduct:

• MR 4.2 (communication with represented persons)
• MR 3.5 (impartiality of the tribunal; ex parte communications)
• North Carolina Rule 7.4(a), (c) (communication with represented and unrepresented parties)
• North Carolina Rule 7.10(b) (ex parte communication in an adversary proceeding)

See also

• NC Ethics Op. RPC 143: city council member as client
• NC Ethics Op. RPC 131: representing the county while suing its department of social services

Source

• Landing page: https://www.ncbar.gov/for-lawyers/ethics-and-governing-rules/ethics-opinions/opinions/rpc-132/

Original opinion text

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

Editor's Note: This opinion was originally published as RPC 132 (Revised). See Rule 4.2(b) for additional guidance.

Inquiry #1:

Citizen C received a loan from the city which loan was secured by a deed of trust against certain real property owned by Citizen C. Sometime after obtaining the loan, Citizen C defaulted in making payments as specified in the note evidencing the obligation and was informed by the mortgage company servicing the loan that the city would proceed to foreclose if she failed to pay the arrearage owed on the loan. Citizen C then employed Lawyer L to represent her interests. Lawyer L wishes to contact a city employee who dealt with Citizen C in the origination of the loan to inquire as to whether the city would accept a deed in lieu of foreclosure. Lawyer L is aware that the city is generally represented by the city attorney who is a full-time salaried employee of the city. Under the circumstances may Lawyer L contact the city employee without the knowledge or consent of the city attorney?

Opinion #1:

Yes. This inquiry involves a matter in which there is no suggestion that Lawyer L has received notice of government lawyer participation in this particular matter; hence, the government employee to be contacted should not be deemed to be represented by another lawyer within the meaning of Rule 7.4(a) which provides:

During the course of his representation of a client, a lawyer shall not:

(a) Communicate or cause another to communicate about the subject of the representation with a party the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized by law to do so.

If contact is made with the government employee, it is incumbent upon Lawyer L to fully disclose his representative capacity and to clearly state the reasons behind any request he might make on behalf of his client. So as to avoid any misunderstanding as to Lawyer L's role in the situation posited, Lawyer L should neither state nor in any manner imply that the city employee is cloaked with other than absolute discretion to respond or not to his communication. Rule 7.4(c).

Inquiry #2:

Attorney A was retained to represent Client W relative to her claim for employment discrimination against the city. Prior to bringing suit, Attorney A would like to write a letter to the city manager to determine whether the city would care to negotiate a settlement of the claim and, failing that, whether the city might volunteer information which might have a bearing upon the claim's merit. Attorney A is aware that the city is represented by the city attorney, a full-time salaried employee of the city. May Attorney A write a letter to the city manager for the stated purpose without the knowledge or consent of the city attorney?

Opinion #2:

Yes. As there is no indication that Attorney A has received notice of the city attorney's participation in this particular matter, the answer will be as in Inquiry #1 above.

Inquiry #3:

Lawyer B has been employed to represent a former city employee concerning a grievance filed by the employee relative to his termination from city employment. While the grievance is pending, Lawyer B would like to telephone a member of the city council for the purpose of offering her views regarding the law pertaining to her client's situation, complaining that her client is being treated unfairly and unlawfully and urging that the council member intervene and have her client reinstated. Lawyer B is aware that the city is generally represented by the city attorney, a full-time salaried city employee. May Lawyer B communicate with the council member in the manner described without the knowledge or consent of the city attorney?

Opinion #3:

No. Assuming from the question that the elected city council member either has or might have some adjudicatory authority over the particular matter at issue, contact with the elected city council member constitutes ex parte communication within the meaning of Rule 7.10(b) which provides:

In an adversary proceeding, a lawyer shall not communicate, or cause another to communicate, as to the merits of the cause with a judge or an official before whom the proceeding is pending except:

(1) In the course of official proceedings in the cause.

(2) In writing, if he promptly delivers a copy of the writing to opposing counsel or to the adverse party if he is not represented by a lawyer.

(3) Orally, upon adequate notice to opposing counsel or to the adverse party if he is not represented by a lawyer.

(4) As otherwise authorized by law.

If the city council member neither has nor will have adjudicatory authority over the particular matter at issue and there has been no notice given to Lawyer B of active participation by the city attorney in this particular matter, contact with the elected city council member would be proper under the circumstances.

If contact is made with the city council member, it is incumbent upon Lawyer B to fully disclose his representative capacity and to clearly state the reasons behind any request he might make on behalf of his client. So as to avoid any misunderstanding as to Lawyer B's role in the situation posited, Lawyer B should neither state nor in any manner imply that the elected city council member is cloaked with other than absolute discretion to respond or not to his communication. Rule 7.4(c).