Ezel / Ethics Opinions / NVBAR
NVBAR January 11, 2018

Can a lawyer in litigation against a government agency make public records requests to that agency without violating the no-contact rule?

Short answer: Yes. The Committee concludes that making a public records request to a government agency the lawyer is suing does not violate Rule 4.2, because the request is 'authorized by law' under Nevada's Public Records Act; the exception is narrow, so any communication with a represented agency employee beyond the records request itself (for example, asking an employee to explain a document) would violate Rule 4.2.

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This page answers the general question as of 2018. Ezel answers yours: whether it's allowed on your facts, under the current rules of professional conduct in your state, with citations.

Currency note: this opinion is from 2018
Subsequent statutory amendments, court decisions, or later opinions or rule amendments may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.
Disclaimer: Advisory only. Not binding precedent.
About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official ethics opinion. The original opinion (linked on this page as a PDF) is the authoritative source for any reliance.
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Plain-English summary

The Committee addressed whether an attorney violates Rule 4.2 (the no-contact rule) by making public records requests to a state or local government agency while litigating against that agency. It answers no, as long as the attorney otherwise observes the limits on communicating with represented parties.

Rule 4.2 bars a lawyer from communicating about the subject of a representation with a represented person unless authorized by law or court order. The Committee reads Nevada's Public Records Act as supplying that authorization. NRS 239.010(1) makes public records open to inspection by "any person" and usable "in any other way" to the advantage of the public, with nothing exempting attorneys in litigation against the agency. NRS 239.001 directs that the Act be construed liberally and that any exemption limiting access be construed narrowly. Read together, these provisions make a records request by a litigating attorney "authorized by law," so it does not run afoul of Rule 4.2, and the broad statutory language encompasses using records in discovery.

The Committee adopts the narrow construction from Oregon State Bar Formal Opinion 2005-144: the "authorized by law" exception covers the request for documents but not further communication with the government employee. Asking a represented employee to explain a document's legal significance, or posing questions intended to elicit statements or admissions against the agency's interest, would exceed the exception and violate Rule 4.2. The Committee notes a parallel for service of a notice of attorney's lien under NRS 18.015(3), which is likewise authorized by law, while any communication beyond the authorized service would violate the Rule.

In practice

Under this opinion, an attorney suing a government agency may submit public records requests to that agency without first obtaining opposing counsel's consent, because the Public Records Act authorizes the request. Per the opinion, the authorization is limited to the records request itself; the attorney may not use the contact to question represented agency employees about the matter, ask them to interpret documents, or seek admissions, which would violate Rule 4.2.

Common questions

Q: I'm suing a county. Can I send a public records request to the county without going through its lawyer?

A: Yes. The opinion concludes a public records request to a government agency you are litigating against is "authorized by law" under the Nevada Public Records Act and does not violate Rule 4.2.

Q: Can I use the records I obtain in discovery?

A: Yes. The opinion reads the Act's broad language (records may be used "in any other way" to the public's advantage) to encompass use in connection with discovery.

Q: Can I ask the agency employee questions when I make the request?

A: No, beyond the request. The opinion adopts a narrow reading: asking a represented employee to explain a document or to make statements against the agency's interest exceeds the exception and violates Rule 4.2.

Background and rules framework

The opinion interprets Nevada RPC 4.2 (communication with a represented person), which corresponds to Model Rule 4.2, focusing on its "authorized by law" exception. It grounds that exception in the Nevada Public Records Act (NRS 239.001 and 239.010) and analogizes to the statutorily authorized service of an attorney's lien under NRS 18.015(3). It follows Oregon State Bar Formal Opinion 2005-144 in narrowly construing the exception.

Citations and references

Rules of Professional Conduct:

  • Nevada RPC 4.2 / Model Rule 4.2 (communication with a person represented by counsel; "authorized by law" exception)

Statutes:

  • NRS 239.001, 239.010 (Nevada Public Records Act; liberal construction; access by "any person")
  • NRS 18.015(3) (service of notice of attorney's lien)

Other opinions cited:

  • Oregon State Bar Formal Op. 2005-144 [Revised 2007]: public records requests and the no-contact rule

See also

Source

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