Can a government lawyer advise an agency investigator to contact a represented licensee, and may the lawyer warn the licensee's attorney about the contact?
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This page answers the general question as of 2026. Ezel answers yours: whether it's allowed on your facts, under the current Oregon Rules of Professional Conduct, with citations.
Plain-English summary
A state agency regulates a licensed profession and has a statutory mandate to investigate alleged violations. A citizen complains against a licensee, and the agency assigns a staff investigator. The agency has also obtained legal counsel from the Attorney General through an assistant attorney general (AAG). The licensee knows of the complaint and has retained Lawyer A. The opinion addresses whether the AAG may advise the investigator about contacting the licensee despite the representation, and whether the AAG may inform Lawyer A of the proposed contact without the agency's consent. It answers the first yes, qualified, and the second no.
On advising the investigator, the opinion applies Oregon RPC 4.2 and Oregon RPC 8.4(a)(1) and (a)(3). It reasons that the agency is authorized by law to investigate, that the licensee's retaining a lawyer does not shield the licensee from agency contact, and that a represented client may communicate directly with another represented party even though the client's lawyer cannot (citing OSB Formal Ethics Op. No. 2005-147). So the investigator, as the agency's agent, may contact the licensee without the AAG's or Lawyer A's permission, and it is not a violation for the AAG to draft rules describing the agency's right to contact licensees directly. The qualification: as in OSB Formal Ethics Op. No. 2005-147, the AAG may not instruct the investigator what to say to the licensee, because a lawyer cannot do through the acts of another what the lawyer cannot do directly.
On informing Lawyer A, the opinion applies Oregon RPC 1.6(a). If the investigator intends to permissibly contact the licensee without Lawyer A's knowledge, the AAG cannot alert Lawyer A to the intended contact without the agency's consent, because disclosing that information without the client's consent would violate the agency's confidentiality rights. The opinion notes this does not prevent the AAG from advising the agency or investigator if the AAG believes the contacts are unwise.
In practice
The opinion holds that the Oregon RPC 4.2 no-contact rule does not block a government client's own investigators from contacting a represented adverse party, and the agency's lawyer may counsel the agency on that right, subject to not scripting the investigator's message. Per the opinion, the analysis turns on the distinction between the client's permissible party-to-party contact and the lawyer's prohibited direction of that contact, and on the lawyer's confidentiality duty to the agency, which bars warning the licensee's lawyer absent agency consent. Verify the current text of Oregon RPC 4.2, 8.4, and 1.6 before relying on any specific point.
Common questions
Q: Can a government lawyer advise an agency investigator to contact a represented licensee?
A: Yes, qualified. The opinion concludes the agency may contact the licensee directly as a party, so the AAG may advise the investigator, but may not instruct the investigator what to say.
Q: Does the licensee's having a lawyer stop the agency from contacting the licensee?
A: No. The opinion concludes that retaining a lawyer does not shield the licensee from contact by the agency or its investigator, because the agency is a party authorized by law to investigate.
Q: Can the government lawyer warn the licensee's attorney about the planned contact?
A: No. The opinion concludes the AAG cannot inform Lawyer A of the intended contact without the agency's consent, because doing so would violate the agency's confidentiality rights under Oregon RPC 1.6(a).
Background and rules framework
The opinion interprets Oregon RPC 4.2 (communication with a represented person) and Oregon RPC 8.4(a)(1) and (a)(3) (violating the rules through another; dishonesty), corresponding to Model Rules 4.2 and 8.4, together with Oregon RPC 1.6 (confidentiality), corresponding to Model Rule 1.6, in the setting of a government lawyer counseling an agency investigator.
Citations and references
Rules of Professional Conduct:
- Oregon RPC 4.2 / Model Rule 4.2 (communication with represented persons)
- Oregon RPC 8.4(a)(1) and (a)(3) / Model Rule 8.4 (acting through another; dishonesty)
- Oregon RPC 1.6(a) / Model Rule 1.6 (confidentiality)
Other opinions cited:
- OSB Formal Ethics Op. No. 2005-147 (rev 2026) (direct communication between represented parties)
- OSB Formal Ethics Op. No. 2005-6 (rev 2026) (communicating with represented persons)
See also
- OSB Ethics Op. 2005-147: Direct Communication Between Represented Parties
- OSB Ethics Op. 2005-152: Contacting Current and Former State-Agency Employees
- OSB Ethics Op. 2005-6: Communicating With Represented Persons
Source
- Landing page: https://www.osbar.org/ethics/toc.html
- Original PDF: https://www.osbar.org/_docs/ethics/2005-161.pdf
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