When a government agency in a dispute with my client has retained counsel, can I still write directly to the head of the agency about the matter?

Plain-English summary

A lawyer represented a client in a dispute with a government agency that had retained private counsel. The lawyer wanted to submit comments to the agency head, asking the agency to exercise its discretionary authority favorably and protesting the position that private parties cannot contact the agency once it has counsel. The agency's counsel objected, asserting that direct contact would violate the no-contact rule, DR 7-104(A)(1). The lawyer intended to notify private counsel of any contact and provide copies of his submissions.

The committee explained that DR 7-104(A)(1) bars a lawyer, during a representation, from communicating about the subject of the representation with a party known to be represented by counsel, unless the other lawyer consents or the communication is "authorized by law." It noted at the outset that whether the agency head was acting in a private or official capacity is a question of law and fact for the inquirer to decide, beyond the committee's jurisdiction.

The committee concluded that communications with a government party can fall within the "authorized by law" exception. It cited the comment to ABA Model Rule 4.2, which lists "the right of a party to a controversy with a governmental agency to speak with government officials about the matter" among communications authorized by law, and it relied on New York State Bar opinions recognizing an implied exception grounded in the "overriding public interest" in access to government. Balancing the government's right to the same protections as other parties against the public's need for access, the committee held that if the agency head is acting in an official capacity, the lawyer may submit comments on the subject of the representation, provided he notifies the agency's private counsel in advance and provides copies of the submissions. If instead the head is acting in a private capacity, the ordinary no-contact rule applies and the lawyer may not communicate without counsel's consent or other legal authorization.

Currency note

This opinion was issued in 1988, before New York replaced the Code of Professional Responsibility (the Disciplinary Rules cited here) with the New York Rules of Professional Conduct, effective April 1, 2009. The no-contact rule is now Rule 4.2. 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 write directly to the head of a government agency that has retained counsel?

A: The committee concluded yes if the agency head is acting in an official capacity, under the "authorized by law" exception to DR 7-104(A)(1), provided the lawyer notifies the agency's counsel and provides copies of the submissions.

Q: What if the agency head is acting in a private capacity?

A: The committee concluded the lawyer then may not communicate with the head without the consent of opposing counsel or other legal authorization, just as with any represented private party.

Q: Who decides whether the official is acting in an official or private capacity?

A: The committee concluded that is a mixed question of law and fact the inquiring lawyer must resolve; it is beyond the committee's jurisdiction.

Background and rules framework

The opinion applied New York Code DR 7-104(A)(1), the prohibition on communicating with a represented party about the subject of the representation absent the other lawyer's consent or authorization by law. The committee read the rule against ABA Model Rule 4.2 and its comment recognizing a citizen's right to speak with government officials about a controversy with the government, with EC 7-18 as supporting authority. The rule corresponds to Model Rule 4.2.

Citations and references

Rules of Professional Conduct:

• New York Code DR 7-104(A)(1); EC 7-18 (applied in the opinion)
• MR 4.2 (communication with a person represented by counsel)

Other opinions cited:

• N.Y. State 160 (1970): communications with a government party once counsel is designated
• N.Y. City 80-46: declining to address DR 7-104(A)(1) as to a government party

See also

• NYC Bar Formal Op. 1991-4: Ex Parte Contact with a Government-Agency Adversary
• NYC Bar Formal Op. 1991-2: Advising a Client to Contact a Represented Adverse Party

Source

• Landing page: https://www.nycbar.org/reports/formal-opinion-1988-8/