Ezel / Ethics Opinions / SBAND

When may a claimant’s lawyer contact Workers Compensation Bureau employees after the bureau retains counsel?

Short answer The committee said Rule 4.2 bars contact about the represented matter with bureau employees who can bind the agency, decide the matter, or whose acts or omissions are at issue or imputable to the agency, absent retained counsel’s consent.
Bar
SBAND
Issued
September 26, 1995
Source
View Original PDF

Apply this to your situation

This page answers the general question as of 1995. 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 bureau retained outside counsel for workers compensation claims and directed a claimant’s lawyer to communicate through that counsel. Previously, direct contact with bureau staff had occurred with implied consent when assistant attorneys general handled claims.

The committee rejected an unrestricted government-agency exception to Rule 4.2. It allowed contact about an unrelated matter, or contact with an employee outside the described decision-making and imputation categories. It declined to decide whether distinct aspects of one compensation claim count as separate matters.

Currency note

This opinion was issued in 1995, 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 Treat this page as historical context, not current guidance.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: Does government status alone allow direct contact?

A: No. The committee declined to read the Rule 4.2 comment as allowing unrestricted direct contact with agency staff.

Q: Did the committee decide whether two issues in one claim are separate matters?

A: No. It said that determination would require a fact-intensive inquiry.

Background and rules framework

The opinion applies North Dakota Rules 4.2 to the stated facts.

Citations and references

Rules of Professional Conduct:

  • North Dakota Rule 4.2.

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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