Can a lawyer contact officials or employees of a government agency that is represented by counsel in the matter?

Plain-English summary

A lawyer asked whether, where a governmental entity is represented by counsel in a matter, the lawyer may communicate with the entity's officials or employees other than the appointed counsel. The committee analyzed the question under DR 7-104(A)(1) of the former Code, the no-contact rule, which it had already held applies beyond litigants in pending proceedings (N.Y. State 607 (1990)).

The committee concluded that the lawyer may communicate with agency officials and employees in connection with the matter (here, a rule-making process) provided one of three conditions holds: the official or employee lacks the power to bind the entity; the communication is directed to the attorneys, if any, designated by the entity to represent it in that matter; or the lawyer concludes the communication is authorized by law. Because the inquiry could be resolved on the first two grounds, the committee did not decide the scope of the "authorized by law" exception, an issue it had not previously addressed.

The committee added a practical caution drawn from the rule's purpose: a person contacting a government entity in a matter involving potential adversity should identify himself and the purpose of the communication, so the government employee has the opportunity to say that counsel has been designated. It distinguished N.Y. State 404 (1975), which treated minority members of a public body who had voted with the inquirer's client as not "adverse" for purposes of the rule, rather than as a holding about the "authorized by law" exception.

Currency note

This opinion was issued in 1993, under New York's former Code of Professional Responsibility, which New York replaced with the Rules of Professional Conduct in 2009. The no-contact provision discussed here (DR 7-104(A)(1)) now appears, in revised form, as 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 Treat this page as historical context, not current guidance.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 contact a government employee when the agency has counsel?

A: Under this opinion, yes, if the employee lacks the power to bind the entity, or the contact is directed to the entity's designated counsel, or the lawyer is authorized by law to make it.

Q: Does the no-contact rule apply when there is no pending lawsuit?

A: Yes. The committee relied on N.Y. State 607 (1990) for the point that "party" in DR 7-104(A)(1) is not limited to litigants in pending proceedings.

Q: Did the committee decide the scope of the "authorized by law" exception?

A: No. Because the question could be resolved on other grounds, the committee declined to decide the reach of that exception.

Background and rules framework

The opinion interpreted DR 7-104(A)(1) (the no-contact rule), DR 9-101(B)(1), and EC 7-18 of New York's former Code, as applied to a represented governmental entity. The closest Model Rule analogue is Rule 4.2 (communication with a represented person), whose comments address communications with represented organizations and government agencies. New York replaced the Code with the Rules of Professional Conduct in 2009; the provisions cited here are historical.

Citations and references

Rules of Professional Conduct:

• MR 4.2 (communication with a represented person)
• NY DR 7-104(A)(1); DR 9-101(B)(1); EC 7-18

Other opinions cited:

• N.Y. State 607 (1990): "party" in the no-contact rule is not limited to litigants in pending proceedings
• N.Y. State 404 (1975): minority members of a public body who voted with the client are not "adverse"
• Ohio Op. 92-7: identifying oneself when contacting a government entity

See also

• NY State Bar Op. 1080: Contacting a public official represented by counsel
• NY State Bar Op. 656: Contacting a child who has a law guardian
• NY State Bar Op. 663: Contacting an adverse party whose lawyer won't respond

Source

• Landing page: https://nysba.org/opinion-652/