I'm suing a state agency and its employee. Can I contact other state agencies and employees directly, or does Rule 4.2 require me to go through the state's counsel?

Currency note

This opinion was issued in 2000, before Rhode Island's later renumbering of the Rules of Professional Conduct. 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 Treat this page as historical context, not current guidance.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 mentioned here.

Plain-English summary

The inquiring attorney represented plaintiffs suing the State of Rhode Island and a state employee, with the State represented by outside counsel. The attorney wanted to contact the State Police directly for accident reports, the Department of Transportation for highway records, the Department of Administration for staffing information, and the defendant's own employing agency for information about the defendant's job duties, assignments, and hours.

The panel applied Rule 4.2, which bars a lawyer from communicating about the subject of a representation with a party known to be represented by counsel, absent that counsel's consent. Relying on the comment to Rule 4.2 and ABA Formal Opinion 97-408 (1997), the panel held Rule 4.2 restricts contact with an organization's managerial employees and any employee whose acts, omissions, or statements could be imputed to the organization or constitute an admission by it. The panel found the right-to-petition considerations discussed in ABA Op. 97-408, which can permit direct contact with government officials on policy matters, did not apply to the fact-gathering contacts described here.

Applying that framework, the panel concluded the attorney could contact employees of the State Police, Department of Transportation, and Department of Administration, because those contacts did not implicate the managerial-imputation concern. But contact with managerial employees and officials of the defendant's own employing agency, about the defendant's job duties and conduct, was prohibited without the consent of counsel representing the State and the defendant. The panel also noted the opinion did not preclude obtaining information through Rhode Island's public records law.

Common questions

Q: Does Rule 4.2 block me from contacting any employee of a government defendant?

A: No. The panel held Rule 4.2 only restricts contact with employees whose acts or statements could be imputed to the organization or count as an admission, primarily managerial personnel connected to the matter.

Q: Can I contact employees of state agencies that are not defendants, just to get records?

A: Yes, according to this opinion, at least where the request does not touch the defendant's own conduct or duties in a way that could bind the state.

Q: Is there a different rule for government defendants because of the right to petition?

A: The panel discussed that right-to-petition considerations can permit direct contact with government officials on policy issues, per ABA Formal Opinion 97-408, but found it did not apply to the fact-gathering contacts at issue here.

Background and rules framework

The opinion applies Rule 4.2 (Model Rule 4.2, Communication with Person Represented by Counsel), which the panel quoted as prohibiting a lawyer from communicating about the subject of a representation with a party known to be represented, absent consent or legal authorization. Drawing on the comment to Rule 4.2 and ABA Formal Opinion 97-408, the panel applied the organizational extension of the rule: contact is barred with persons having managerial responsibility for the organization or whose acts, omissions, or statements could be imputed to it or constitute an admission.

Citations and references

Rules of Professional Conduct:

• MR 4.2 (Communication with Person Represented by Counsel) / RI Rule 4.2

Statutes:

• R.I. Gen. Laws § 38-2-1 et seq. (Access to Public Records)

Other opinions cited:

• ABA Standing Committee on Ethics and Professional Responsibility, Formal Op. 97-408 (1997): Rule 4.2's application to government entities and the right-to-petition balancing test

See also

• ABA Formal Op. 97-408: Communication with Government Agency Represented by Counsel
• DC Ethics Op. 340: Contacts with Government Officials in Litigated Matters
• Maine Bar Op. 94: Communication with an Employee or Official of a Municipality
• RI EAP Op. 2002-01: Duty to a Former Client After Termination, and Rule 4.2 Contact Restrictions

Source

• Landing page: https://www.courts.ri.gov/attorney-resources/Pages/Ethics-Advisory-Panel-default.aspx
• Original PDF: https://www.courts.ri.gov/Opinions/EAP%2000-09.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain; the linked PDF is authoritative.

Final

Rhode Island Supreme Court
Ethics Advisory Panel Opinion No. 2000-09, Request No. 810
Issued November 9, 2000

FACTS

The inquiring attorney represents individuals in a lawsuit in which they allege that they
were injured by a state employee. Defendants are the State of Rhode Island and the employee.
The State is represented by outside counsel. The inquiring attorney would like to obtain records
and information from various state agencies and employees. Specifically, the inquiring attorney
wants to directly contact the State Police to obtain accident reports and details of the
investigation; the Department of Transportation to obtain highway construction, maintenance,
and repair records; the Department of Administration to obtain information about the number of
persons employed in similar positions as that of the defendant-state employee; and the agency
that employs the defendant to obtain descriptions of the employee's job duties, assignments, and
hours worked.

ISSUE PRESENTED

The inquiring attorney asks whether the Rules of Professional Conduct restrict or prevent
him/her from directly contacting the various state agencies and employees.

OPINION

Pursuant to Rule 4.2 the inquiring attorney may directly communicate with employees
of the State Police, the Department of Transportation, and the Department of Administration for
the purpose of obtaining the information described. However, direct communication with
managerial employees and officials of the state agency that employs the defendant, about the
defendant's job duties, assignments, and hours worked, is prohibited unless he/she has the
consent of the lawyer or lawyers representing the opposing parties.

REASONING

Rule 4.2 prohibits a lawyer from communicating with a party that is represented by
counsel about the subject of the representation. The rule states as follows:

Rule 4.2. Communication with Person Represented by
Counsel. - In representing a client, a lawyer shall not
communicate about the subject of the representation with a
party the lawyer knows to be represented by another lawyer
in the matter, unless the lawyer has the consent of the other
lawyer or is authorized by law to do so.

Final 2000-09
Page 2

The prohibition of Rule 4.2 applies to all represented parties, including both private and
public organizational entities. See ABA Standing Committee on Ethics and Professional
Responsibility, Formal Op. 97-408 (1997). Where the represented party is an organization, the
Rule prohibits a lawyer from communicating

"... with persons having a managerial responsibility on
behalf of the organization, and with any other person whose
act or omission in connection with that matter may be
imputed to the organization for purposes of civil or
criminal liability or whose statement may constitute an
admission on the part of the organization." Comment to
Rule 4.2.

In the case of a government entity, an additional consideration is the right to petition
government for redress of grievances guaranteed by the First Amendment to the United States
Constitution and article 1, section 21 of the Rhode Island Constitution, and the derivative public
policy of ensuring a citizen's right to access to government decision-makers. "Communications
authorized by law include, for example, the right of a party to a controversy with a government
agency to speak with government officials about the matter." Comment to Rule 4.2.

The ABA Standing Committee on Ethics and Professional Responsibility addressed Rule
4.2 as it applies to government entities in ABA Formal Op. 97-408 (1997). In balancing the
interests served by the no-contact rule against the constitutional right of petition and the related
public policy favoring access to government decision-makers, the Committee concluded that a
lawyer representing a private party in a controversy with the government may communicate
directly with government officials provided that (a) the sole purpose of the communication is to
address a policy issue, including settlement of the controversy; (b) the government official has
authority to take or recommend action in the controversy; and (c) the lawyer notifies government
counsel in advance or if the communication is written, mails government counsel a copy of the
written communication, thereby affording government counsel a meaningful opportunity to
advise the officials. See ABA Standing Committee on Ethics and Professional Responsibility,
Formal Op. 97-408 (1997).

In the instant inquiry, the right to petition has no apparent applicability to the direct
contacts described by the inquiring attorney. Therefore, Rule 4.2 applies to the inquiring
attorney's communications with officials and employees of the State in the same way it applies to
a lawyer's communications with officials and employees of a private organization. That is to say,
the inquiring attorney is prohibited from communicating with persons who have managerial
authority to speak on behalf of or bind the State, whose acts or omissions in connection with the
matter can be imputed to the State, and whose statements can constitute an admission on the part
of the State. See Comment to Rule 4.2. Thus, subject to these restrictions, the inquiring

Final 2000-09
Page 3

attorney may directly communicate with employees of the State Police to obtain accident reports
and details of the investigation, the Department of Transportation to obtain highway records, and
the Department of Administration to obtain information on the numbers of persons employed in
positions similar to that of the defendant-state employee.

With respect to managerial employees and officials of the state agency that employs the
defendant, the Panel is of the opinion that there exists a greater likelihood that the acts or
omissions of such persons could be imputed to the State, and that the statements of such persons
could constitute an admission on the part of the State. Therefore, the inquiring attorney is
prohibited from directly communicating with managerial employees and officials of the state
agency that employs the defendant, about descriptions of the defendant's job duties, the
defendant's assignments, and the hours that defendant worked, unless he/she has the consent of
the lawyer or lawyers representing the defendants.

Nothing in this opinion precludes a lawyer from obtaining information under Rhode
Island General Laws §38-2-1 et seq., entitled "Access to Public Records."