A human-rights agency directs me to send my client's position paper to the represented complainant. May I also copy the complainant on my adversarial cover letter to the agency, or does Rule 4.2 forbid it?

Plain-English summary

The inquiring attorney represented a respondent in a discrimination case before the Commission for Human Rights. As a matter of course, the Commission's compliance officer, on receiving a complaint, directs the charged party to submit a position paper to the Commission with a copy to the complainant and the complainant's attorney within twenty days. The attorney prepared a position paper and sent copies to the complainant and the complainant's attorney, and also sent them a copy of the attorney's cover letter to the compliance officer. That letter charged that the complaint was frivolous and urged the Commission to impose Rule 11 sanctions, arguing that if Rule 11 did not apply the Commission should adopt such a rule. The complainant's attorney asserted that forwarding the correspondence to the complainant violated Rule 4.2, and the inquiring attorney sought guidance.

The panel declined to decide whether the Commission's directive had statutory authorization sufficient to meet the U.S. Supreme Court's "authorized by law" test in Chrysler v. Brown, but noted the directive might fall within the Rule 4.2 exception permitting communication with a represented person when authorized by law, at least as to the required position paper. It concluded, however, that sending the represented complainant a copy of a cover letter that was both substantive and adversarial was not contemplated by the directive. The plain language of the directive required sending only the position paper to a represented party and did not authorize also sending extraneous, substantive materials outside the pleadings, so copying the complainant on that letter was not permitted by Rule 4.2.

Currency note

This opinion was issued in July 1997, after the Rhode Island Supreme Court adopted the Model Rules of Professional Conduct effective November 15, 1988, and it applies Rule 4.2 as originally adopted. The Rhode Island Supreme Court later revised the Rules of Professional Conduct in 2007 as part of the nationwide Ethics 2000 process, which changed the anti-contact rule's wording. 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 Treat this page as historical context, not current guidance.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.

Common questions

Q: Does Rule 4.2 forbid sending anything to a represented opposing party?

A: Not when authorized by law. The opinion noted that an agency directive requiring the position paper to be copied to the represented complainant might qualify under Rule 4.2's "authorized by law" exception.

Q: Could the lawyer copy the complainant on the adversarial cover letter too?

A: No. The opinion concluded that the directive authorized sending only the position paper, so copying the represented complainant on an extraneous, substantive, adversarial letter outside the pleadings was not permitted by Rule 4.2.

Q: Did the panel decide whether the agency directive was valid "law"?

A: No. The opinion expressly declined to decide whether the Commission's directive had statutory authorization sufficient to meet the Chrysler v. Brown test.

Background and rules framework

The opinion applied Rhode Island Rule of Professional Conduct 4.2 (Model Rule 4.2), the anti-contact rule, which bars a lawyer from communicating about the subject of the representation with a person known to be represented, absent the other lawyer's consent or authorization by law. The panel adopted the ABA's view, from Formal Opinion 95-396, that "authorized by law" is measured by the Chrysler v. Brown standard, under which an agency directive counts as law only when embodied in formal regulations properly promulgated under statutory authority. The panel applied that framework but resolved the inquiry on the narrower ground that the directive did not reach the extraneous letter.

Citations and references

Rules of Professional Conduct:

• Model Rule 4.2 / RI RPC 4.2 (communication with person represented by counsel)

Cases:

• Chrysler Corp. v. Brown, 441 U.S. 281 (1979), standard for when agency action has the force of law

Other opinions cited:

• ABA Comm. on Ethics and Professional Responsibility, Formal Op. 95-396 (1995): "authorized by law" under Rule 4.2 requires properly promulgated regulations

See also

• RI EAP Op. 98-16: Contacting lawyer-referral-service clients is not solicitation
• RI EAP Op. 98-12: Reporting a client threat against the lawyer

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%2097-14.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

Final

                        RHODE ISLAND SUPREME COURT
                           ETHICS ADVISORY PANEL
                       OPINION NO. 97-14, REQUEST NO. 719
                               Issued July 10, 1997

FACTS:

    The inquiring attorney's client is the respondent in a discrimination case filed with the

Commission for Human Rights. As a matter of course, a compliance officer at the Commission
upon receiving a complaint in such a case notifies the party charged and requests the party to
"submit a position paper to the Commission with a copy to the complainant and complainant's at-
torney (if listed below) outlining your response to the charge within twenty (20) calendar days."
The inquiring attorney's client received such a letter. On behalf of the client, the inquiring attor-
ney prepared a position paper for filing with the Commission and sent copies of it to the com-
plainant and to the complainant's attorney. The inquiring attorney also sent the complainant and
his/her attorney copies of a cover letter from the inquiring attorney directed to the compliance of-
ficer. In the letter, the inquiring attorney charged that the complaint was frivolous and urged the
Commission to impose Rule 11 sanctions on the complainant, urging further that if Rule 11 does
not apply to the Commission, it should adopt such a rule under its statutory rule-making author-
ity. Complainant's attorney notified the inquiring attorney that forwarding the correspondence to
the complainant was a violation of Rule 4.2, and the inquiring attorney seeks guidance from the
Panel as to how he/she should proceed under these circumstances.

ISSUES PRESENTED:

    Is the Commission for Human Rights' directive which requires attorneys to send copies of

position papers to complainants who are known to be represented by counsel consistent with
Rule 4.2., and if so, does the directive include sending such persons copies of substantive corre-
spondences which are outside the pleadings?

OPINION:

    The Panel expresses no opinion about whether the Commission's directive has the statu-

tory authorization sufficient to meet the United States Supreme Court's test in Chrysler v. Brown,
but notes that the directive may fall within the exception to Rule 4.2 which permits direct com-
munication with a person who is represented by counsel when authorized by law. However,
sending a represented party copies of extraneous materials, such as the inquiring attorney's ad-
versarial letter to the compliance officer, which are outside the pleadings and are not properly a
part thereof, is not authorized by the Commission and is therefore not permitted by Rule 4.2.
Final 97-14
Page 2

REASONING:

    The anti-contact rule stated in Rule 4.2 contains an exception in situations where contact

with a represented person is "authorized by law." The Rule provides:

           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.

     The ABA Standing Committee on Ethics and Professional Responsibility has stated that

the appropriate test for interpreting the term "authorized by law" which appears in Model Rule
4.2 is the test announced in Chrysler v. Brown, 441 U.S. 281 (1979). See ABA Comm. on Eth-
ics and Professional Responsibility, Formal Op. 95-396 (1995). In Chrysler v. Brown, the Court
rejected the argument that any agency conduct that is directed or approved by an agency head is
"authorized by law." The Court held that for a government agency's regulation to have the force
of law, it must be a substantive regulation which has been adopted in accordance with procedural
requirements imposed by Congress and rooted in a Congressional grant of authority. A general
grant of regulatory authority to an agency is not sufficient to support regulations that allow what
other law forbids.
The Panel does not express a view as to whether the directive of the Commission for
Human Rights, which requires attorneys to send copies of pleadings to represented parties, has
the statutory authorization sufficient to meet the Chrysler v. Brown test. Such a directive would
qualify as "law" for purposes of the exception in Rule 4.2 "only when embodied in formal regu-
lations that have been properly promulgated according to statutory authority that contemplates
regulation of the character in question. Were any other regulation or fiat by an agency head to be
considered an authorization by law, any government agency could 'authorize' its lawyers to en-
gage in conduct expressly prohibited by ethical codes simply by promulgating a regulation or
policy." ABA Commission on Ethics and Professional Responsibility, Formal Op. 95-396
(1995).

    Assuming that sending the complainant a copy of the position paper is authorized by law,

the Panel is of the opinion that also sending the complainant a copy of a cover letter which was
both substantive and adversarial was not contemplated by the directive. The plain language of
the directive requires attorneys to send copies of only the position paper to a represented party,
and does not authorize also sending extraneous materials that are substantive which are outside
the pleadings and are not properly a part thereof.