Can a lawyer send a public-records request directly to the records custodian when that custodian is an adverse party represented by counsel who has not consented to the contact?

Plain-English summary

The opinion arose from an employment suit by a former county employee against a county and several officials, including the county manager, who was the custodian of the county's public records under the North Carolina Public Records Act. The plaintiff's lawyer made a public-records request under G.S. 132-6 directly to the county manager to inspect mobile-telephone records, copying the county attorney but without obtaining the consent of either lawyer representing the county officials. The question was whether a lawyer may make such a direct request when the records custodian is a represented adverse party and the custodian's lawyer does not consent.

The opinion concluded that the lawyer may communicate directly with the custodian to make a public-records request regardless of whether the custodian's lawyer consents. It applied Rule 7.4(a), the no-contact rule, which permits communication with a represented party only with opposing counsel's consent or where the communication is "authorized by law." The opinion read G.S. 132-6, which requires every custodian of public records to permit inspection by any person, as authorizing the contact. It noted that confidential lawyer-client communications of a government body are exempted from the definition of public records by G.S. 132-1.1(a), showing the legislature had considered how representation limits records access, and that under News and Observer Publishing Co. v. Poole, 330 N.C. 465, 412 S.E.2d 7 (1992), a clear statutory exemption is required to limit the Act's liberal access. Because no exemption exists for requests where the custodian is represented, the direct request was proper. The opinion added that, while not required by the Rules, it is professionally courteous to copy the custodian's lawyer on a written records request relating to a matter in which the custodian is represented.

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 Treat this page as historical context, not current guidance.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 send a public-records request to a represented adverse custodian without opposing counsel's consent?

A: Yes. The opinion concluded that the request is authorized by law under the Public Records Act, which is an exception to the no-contact rule, so the custodian's lawyer's consent is not required.

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

A: The opinion read Rule 7.4(a) to permit communication with a represented party when "authorized by law," and it found G.S. 132-6's command that custodians permit inspection by any person to be such authorization. It noted no statutory exemption limits records access because a custodian is represented.

Q: Should the lawyer still notify the custodian's attorney?

A: It is not required but courteous. The opinion stated that providing a copy of a written records request to the custodian's lawyer, when the records relate to a matter in which the custodian is represented, is professionally courteous.

Background and rules framework

The opinion applied North Carolina's then-current Rule 7.4(a), the rule prohibiting communication about the subject of a representation with a person known to be represented by another lawyer, which corresponds to Model Rule 4.2. The rule's "authorized by law" exception did the work here, with the North Carolina Public Records Act (G.S. Chapter 132) supplying the authorization and the Poole decision framing how narrowly exemptions to the Act are read.

Citations and references

Rules of Professional Conduct:

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

Statutes:

• N.C. Gen. Stat. 132-6 (inspection of public records)
• N.C. Gen. Stat. 132-1.1(a) (exemption for confidential government attorney-client communications)

Cases:

• News and Observer Publishing Co. v. Poole, 330 N.C. 465, 412 S.E.2d 7 (N.C. 1992), a clear statutory exemption is required to limit access under the Public Records Act

See also

• NC Ethics Op. RPC 233: receipt of a letter from a represented criminal defendant
• NC Ethics Op. RPC 249: communication with a child represented by a GAL and advocate

Source

• Landing page: https://www.ncbar.gov/for-lawyers/ethics-and-governing-rules/ethics-opinions/opinions/rpc-219/

Original opinion text

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

Inquiry:

E, a former employee of R County, brought suit against R County and the county manager, the county personnel officer, and the county building inspector in both their personal and official capacities. The defendants are represented by Attorney A, the county attorney, and by outside legal counsel, Attorney L. E is represented by Attorney X. The county manager is the custodian of the public records of R County pursuant to the North Carolina Public Records Act, Chapter 132 of the General Statutes. Attorney X made a public records request, pursuant to G.S. §132-6, to the county manager to inspect and examine all mobile telephone records for the county building inspector. Attorney X copied Attorney A on the written request for the public records but he did not obtain the consent of Attorney A or Attorney L to the direct communication with their client, the county manager. Subsequently, a public records request for files from the building inspections department of R County was made by a person believed to be a part-time employee in Attorney X's law firm. This request was directed to the building inspector as the custodian of these public records. A courtesy copy of this request was sent by Attorney X to Attorney A. May a lawyer make a direct written request to inspect public records related to the representation of a client if the custodian of the public records is an adverse party represented by legal counsel and the custodian's attorney does not consent to the communication?

Opinion:

Yes, a lawyer may communicate directly with the custodian of public records for the purpose of making a public records request regardless of whether the custodian's lawyer consents to the communication. Rule 7.4(a) of the Rules of Professional Conduct permits a lawyer to "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" in only two situations: (1) the lawyer has the consent of the opposing party's lawyer; or (2) the communication is "authorized by law." G.S. §132-6 provides

[e]very person having custody of public records shall permit them to be inspected and examined at reasonable times and under his supervision by any person, and he shall furnish certified copies thereof on payment of fees as prescribed by law.

Confidential communications between a government body and its attorney are specifically exempted from the definition of "public records" by G.S. §132-1.1(a). By this exemption, it appears that the General Assembly contemplated the extent to which the representation of a government body by a lawyer should limit the right to request public records. Further, in News and Observer Publishing Company v. Poole, 330 N.C. 465, 412 S.E. 2d 7 (1992), the North Carolina Supreme Court held that a clear statutory exemption must exist in order to limit the liberal access to public records allowed by the Act. Id. at 474-475, 412 S.E. 2d at ___. No exemption exists in the Act for requests for public records when the custodian is represented by legal counsel in a particular matter.

Although not required by the Rules of Professional Conduct, it is professionally courteous to provide a copy of a written request to inspect public records to the lawyer for the custodian of the records when the public records relate to a particular matter in which the custodian is represented by legal counsel.