Can a lawyer adverse to a public body contact a government employee for copies of public records without the public body's lawyer's consent?

Plain-English summary

Lawyer A represents a client who opposes certain county action, and the county is represented in the matter by Lawyer B. The opinion asks whether Lawyer A may contact a county employee to obtain copies of public records without first getting Lawyer B's consent, and answers yes.

The opinion applies Oregon RPC 4.2, which bars contact with a represented person absent the other lawyer's consent or another exception, including being "authorized by law." For analysis, it assumes the records concern the represented subject and even assumes that the person who must be contacted is a "person represented" (an officer or manager who can bind the entity, per OSB Formal Ethics Op. Nos. 2005-80 and 2005-152), so the question becomes whether the contact is authorized by law. It then turns to the Public Records Law (ORS 192.311 to 192.431), under which any person may inspect or copy non-exempt public records for any reason. Because exercising that right requires at least some communication with the record's custodian, the opinion concludes that Lawyer A's limited communication to obtain a specified public document is authorized by law and therefore permitted by Oregon RPC 4.2.

The opinion notes two qualifications. First, if Lawyer A's client is a party to a civil judicial proceeding to which the county is a party, or has filed a tort claims notice under ORS 30.275, and the document relates to that proceeding or notice, then ORS 192.314(2)(a) requires the request to be made in writing to the public body's attorney at the same time as to the custodian. Second, the "authorized by law" exception is narrowly construed (citing In re Williams): communications with substantive content, rather than mere identification of documents, would violate Oregon RPC 4.2 if directed to a represented person. For example, asking a represented person to explain a document's legal significance, or posing questions meant to elicit admissions against the public body's interest, would be improper. A footnote adds that if the employee is a quasi-judicial decision-maker, Oregon RPC 3.5's bar on ex parte contact must also be considered.

In practice

The opinion holds that requesting copies of public records from a government custodian is a communication authorized by law, so Oregon RPC 4.2 does not require opposing counsel's consent for that limited purpose. Per the opinion, the analysis turns on the distinction between identifying and obtaining a record (permitted) and substantive communication with a represented person (prohibited), with a separate written-notice obligation under ORS 192.314(2)(a) when the requester is in litigation or has filed a tort claims notice. Verify the current text of Oregon RPC 4.2 and the Public Records Law before relying on any specific point.

Common questions

Q: Can a lawyer get public records from an opposing public body without going through its lawyer?

A: Yes. The opinion concludes that a limited request to obtain a specific public record is authorized by law under the Public Records Law, so Oregon RPC 4.2 does not bar it.

Q: Are there situations where the lawyer must also notify the public body's attorney?

A: Yes. The opinion states that under ORS 192.314(2)(a), if the client is a party to civil litigation with the public body or has filed a tort claims notice and the document relates to it, the request must be made in writing to the public body's attorney at the same time as to the custodian.

Q: Can the lawyer ask the employee questions about the records?

A: Not substantive ones. The opinion concludes that asking a represented person to explain a document's legal significance, or to elicit admissions against the public body, would violate Oregon RPC 4.2; only communication to identify and obtain the document is authorized.

Background and rules framework

The opinion interprets Oregon RPC 4.2 (communication with a represented person), corresponding to Model Rule 4.2, focusing on its "authorized by law" exception as informed by Oregon's Public Records Law (ORS 192.311 to 192.431, with ORS 192.314(2)(a) on litigation-related requests). It also references Oregon RPC 3.5 (corresponding to Model Rule 3.5) on ex parte contact where the employee is a quasi-judicial decision-maker.

Citations and references

Rules of Professional Conduct:

• Oregon RPC 4.2 / Model Rule 4.2 (communication with represented persons; "authorized by law" exception)
• Oregon RPC 3.5(b) / Model Rule 3.5 (ex parte communication with a decision-maker)

Statutes:

• ORS 192.311 to 192.431 (Public Records Law)
• ORS 192.314(2)(a) (simultaneous written request to public body's attorney in litigation or tort-claims context)
• ORS 30.275 (tort claims notice)

Cases:

• In re Williams, 314 Or 530, 840 P2d 1280 (1992) (narrow construction of "authorized by law")
• Jordan v. Motor Vehicles Division, 308 Or 433, 781 P2d 1203 (1989) (public-records availability policy)

Other opinions cited:

• OSB Formal Ethics Op. No. 2005-80 (rev 2026) (who is a "person represented" within an entity)
• OSB Formal Ethics Op. No. 2005-152 (rev 2026) (entity employees and Rule 4.2)
• ABA Formal Ethics Op. No. 97-408

See also

• OSB Ethics Op. 2005-80: Contacting Corporate Employees
• OSB Ethics Op. 2005-6: Communicating With Represented Persons
• OSB Ethics Op. 2005-83: Ex Parte Contact With an Administrative Law Judge

Source

• Landing page: https://www.osbar.org/ethics/toc.html
• Original PDF: https://www.osbar.org/_docs/ethics/2005-144.pdf