Can a lawyer write to elected town council members on a client's behalf to ask that a pending matter be placed on the agenda, when the town is represented by counsel who refuses consent?

Plain-English summary

The opinion arose from a sign-variance dispute. Two lawyers had won a variance for their clients before a town board of adjustment, and the town's attorney then appealed to superior court, where the matter had been pending since 1991. The lawyers believed the town lacked standing and that the case was moot after the sign permit issued and the sign was built, and they thought the newly elected council might want to drop the appeal. They asked the town attorney for permission to petition the council to drop the appeal; he refused to let them communicate with the council. The question was whether they could petition the elected council members on their clients' behalf without the town attorney's consent.

The opinion concluded that the lawyers may communicate in writing with the council members to petition to have the matter placed on the agenda for the next public meeting, with a copy of the communication provided to the town attorney. It applied Rule 7.4(a), which bars communication about the subject of a representation with a represented party unless the other lawyer consents or the communication is authorized by law. The opinion held the First Amendment right "to petition the government for a redress of grievance" supplies that authorization, noting the Comment to Rule 7.4 recognizes that communications authorized by law include the right of a party in a controversy with a government agency to speak with government officials about the matter. The appropriate forum is a public meeting of the council, so a written request to be heard, including the merits of the client's position and why it should be heard, may be sent directly to the council members without interference from the town's counsel; whether to place the item on the agenda is for the elected officials, presumably with their attorney's advice. The opinion added that it does not restrict a client's own right to communicate directly with elected representatives without the town lawyer's consent.

Currency note

This opinion was issued in 1995, before the North Carolina State Bar's adoption of the 2003 revisions to the Rules of Professional Conduct. 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 Treat this page as historical context, not current guidance.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 represented elected officials directly on a client's behalf?

A: Yes, to petition. The opinion concluded the lawyers may write the council members to petition to have the matter placed on the agenda for a public meeting, even without the town attorney's consent.

Q: Why does the no-contact rule not bar this?

A: Because the contact is authorized by law. The opinion held that the First Amendment right to petition the government is a communication "authorized by law" under Rule 7.4(a), as the rule's Comment recognizes for parties in a controversy with a government agency.

Q: Are there limits on how the lawyer makes the request?

A: The proper forum is a public meeting. The opinion treated a written request to be heard, with a copy to the town attorney, as proper, while leaving the decision whether to place the item on the agenda to the elected officials.

Background and rules framework

The opinion applied North Carolina's then-current Rule 7.4(a), the no-contact rule corresponding to Model Rule 4.2, and its "authorized by law" exception. It treated the First Amendment right to petition the government as the authorizing law, consistent with the Comment to Rule 7.4 recognizing a party's right to speak with government officials about a controversy with a government agency.

Citations and references

Rules of Professional Conduct:

• MR 4.2 (communication with person represented by counsel)
• North Carolina Rule 7.4(a)

Other authorities:

• U.S. Constitution, First Amendment (right to petition the government for redress of grievances)

See also

• NC Ethics Op. RPC 219: public-records request to a represented adverse party
• NC Ethics Op. RPC 233: receipt of a letter from a represented criminal defendant

Source

• Landing page: https://www.ncbar.gov/for-lawyers/ethics-and-governing-rules/ethics-opinions/opinions/rpc-202/

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 202 (Revised).

Inquiry:

Attorney A and Attorney B represented Clients X and Y before the town board of adjustment where they were successful in getting a sign variance. The town's attorney, acting on behalf of the town, filed an appeal in superior court of the variance granted by the board of adjustment. The appeal has been pending since 1991.

Attorneys A and B believe that the town lacks standing to file an appeal against its own board of adjustment. Also, Attorneys A and B believe that the case has become moot by the town's issuance of permit for the sign and the construction of the sign in 1991.

An intervening election changed the composition of the town council. The present council may not want to continue to pursue the appeal, given the expense and the questionable merits of the appeal. Attorney A and Attorney B wrote to the town attorney seeking his permission to petition the town council to drop the appeal. The town attorney refused to permit Attorney A and Attorney B to communicate with the members of the town council. Attorney A and Attorney B believe that their clients, as citizens and taxpayers, should have the right to petition their elected officials through their chosen legal representative. May Attorneys A and B petition the elected members of the town council, on behalf of their clients, without the consent of the town attorney?

Opinion:

Yes, Attorneys A and B may communicate in writing with the members of the town council for the purpose of petitioning to have a matter placed on the agenda for the next public meeting of the town council. A copy of the written communication should be provided to the town attorney.

Rule 7.4(a) of the Rules of Professional Conduct prohibits communications about the subject of representation with a party the lawyer knows to be represented by another lawyer in the matter unless the other lawyer consents or unless the lawyer is authorized by law to communicate with the party. The First Amendment of the United States Constitution, however, prohibits the enactment of laws that abridge the right of the people "to petition the government for a redress of grievance." The Comment to Rule 7.4 recognizes this constitutional right where it notes that "[c]ommunications authorized by law include...the right of a party to a controversy with a government agency to speak with government officials about the matter."

If the town is represented in a matter by legal counsel, the appropriate forum in which a lawyer should address the elected officials of the town on behalf of a client is a public meeting of the town council. A written request to be heard, including a discussion of the merits of the client's position and why it should be heard by the town council may, therefore, be sent directly to the members of the town council without interference from the legal counsel for the town. The decision as to whether a particular item will be placed on the agenda for a public meeting of the town council must be made, however, by the elected officials, presumably with the advice of their attorney.

This opinion does not restrict a client's right to communicate directly with his or her elected representatives without the consent of the lawyer for the town.