Ezel / Ethics Opinions / SBAND

Does Rule 4.2 apply to government lawyers and employees they directly supervise when communicating with represented claimants?

Short answer The committee said Rule 4.2 applied to all lawyers, including government lawyers, and employees under their direct supervision. It declined to give a clear opinion on the specific claims-analyst contacts because the request lacked sufficient facts.
Bar
SBAND
Issued
December 29, 1987
Source
View Original PDF

Apply this to your situation

This page answers the general question as of 1987. Ask about yours and see what the current North Dakota Rules of Professional Conduct say for your facts, with citations.

How much weight this carries: Under North Dakota Rule for Lawyer Discipline 1.2(B), a lawyer who acts in good faith and in reasonable reliance on a written opinion of the association's ethics committee is not subject to sanction for the conduct the opinion addresses. Source.
About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official ethics opinion. The original opinion (linked on this page as a PDF) is the authoritative source for any reliance.
View original ethics opinion (PDF)

Plain-English summary

The request arose from communications between a workers’ compensation bureau’s claims analysts and claimants represented by counsel. The committee questioned whether the analysts’ conduct was within its jurisdiction and said the facts were too limited and the problem too general for a clear opinion on the particular contacts.

The committee nevertheless strongly advised that Rule 4.2 applied to all lawyers, including government lawyers, and employees under their direct supervision. It suggested that some specific questions might instead belong to the Unauthorized Practice of Law Committee or Administrative Law Committee.

Currency note

This opinion was issued in 1987, before North Dakota's 2006 revisions to its Rules of Professional Conduct. The later North Dakota Opinion 06-05 states: “On August 1, 2006, material changes to N.D.R. Prof. Conduct 1.10(a) will take effect.” 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 Treat this page as historical context, not current guidance.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.

Common questions

Q: Did the committee decide whether the analysts’ individual contacts were permissible?

A: No. It said there were insufficient facts and too general a problem to give a clear opinion on those questions.

Q: Did the committee exclude government lawyers from Rule 4.2?

A: No. It strongly advised that the rule applied to all lawyers, including government lawyers, and employees under their direct supervision.

Background and rules framework

The committee expressly identified Rule 4.2 of the Code of Professional Responsibility. Its statement about the rule’s reach did not resolve the disputed examples of direct bureau contact.

Citations and references

Rules of Professional Conduct:

  • Rule 4.2 of the Code of Professional Responsibility, applied to government lawyers and directly supervised employees.

See also

Source

Original opinion text

Full opinion text unavailable from the official source; see the linked source above for the complete text.

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