May a lawyer who works as a federal investigator contact a represented target of an investigation directly, even though the target is represented by counsel?

Plain-English summary

The inquirer is a South Carolina Bar member employed by a U.S. federal agency as a "Federal Investigator." The job involves administrative investigations of potential violations of federal law, administering fines, and collecting money for aggrieved persons, with the inquirer's involvement ending once litigation begins. The work requires applying statutes and regulations and dealing adversarially with attorneys representing investigation targets; investigators need not be attorneys and many are not. Some target attorneys are unresponsive or oppose the findings, and supervisors have encouraged the inquirer to contact targets directly, with the statute of limitations sometimes running. The question is whether the inquirer may directly contact a represented target.

The committee answered yes. Rule 4.2 prohibits a lawyer, "in representing a client," from communicating about the subject of the representation with a person the lawyer knows to be represented by counsel, absent consent or legal authorization. The rule protects represented persons from overreaching, interference with the client-lawyer relationship, and uncounseled disclosure (Comment 1). While a lawyer is bound by the rules even when not acting as an attorney (Opinion 86-10), some rules apply only in a representative capacity, and Rule 4.2 is one of them. The committee relied on ABA Formal Opinion 95-396 (1995), which noted that investigators are not directly subject to Rule 4.2 even if admitted to the bar, because in their investigative activities they are not representing a client, and on 28 C.F.R. § 77.2(a), which excludes attorneys employed as investigators from the definition of "attorney for the government."

The committee pointed to its Opinion 92-07 (a lawyer not representing his wife could contact her represented former husband) and to decisions from other jurisdictions applying the same reasoning to securities examiners, court-appointed child advocates, bankruptcy trustees, and EEO investigators. It concluded Rule 4.2 does not forbid a federal investigator's contact with a represented person merely because the investigator is a lawyer, provided he is not acting at the direction of an attorney representing the agency (Comment 4); at the same time, the "investigator" title does not make Rule 4.2 per se inapplicable, citing a Philadelphia opinion applying Rule 4.2 to a guardian ad litem whose duties are coextensive with legal representation. The committee advised the inquirer to be mindful of the rule's policies, avoid overreaching, not undermine the target's relationship with counsel, and comply with other rules including Rule 8.4. It distinguished these facts from its opinions on pro se lawyer-litigants (Opinions 11-01 and 86-10).

In practice

The opinion holds that, under South Carolina Rule 4.2, the no-contact rule applies only to a lawyer who is "representing a client," so a bar member working as a federal investigator may contact a represented target directly because in that role he is not representing a client. The opinion conditions this on the investigator not acting at the direction of an attorney who represents the agency (Comment 4), and notes the title "investigator" is not by itself dispositive where the role is coextensive with legal representation. It advises the investigator to avoid overreaching, not undermine the target's counsel relationship, and comply with other rules including Rule 8.4.

Common questions

Q: Does Rule 4.2 stop a lawyer-investigator from contacting a represented target?

A: No. The committee held Rule 4.2 applies only when a lawyer is "representing a client," and a federal investigator is not representing a client in that role.

Q: Why doesn't being a bar member trigger the rule?

A: The committee said that although a lawyer is bound by the rules even when not acting as an attorney, Rule 4.2 by its terms applies only in a representative capacity, citing ABA Formal Opinion 95-396 and 28 C.F.R. § 77.2(a).

Q: Is the "investigator" title alone enough to make Rule 4.2 not apply?

A: No. The committee said the title is not per se dispositive, citing a Philadelphia opinion applying Rule 4.2 to a guardian ad litem whose duties were coextensive with legal representation.

Q: Are there limits on how the investigator contacts the target?

A: Yes. The committee advised avoiding overreaching, not undermining the target's relationship with counsel, not acting at the direction of the agency's attorney (Comment 4), and complying with other rules including Rule 8.4.

Background and rules framework

The opinion interprets South Carolina Rule 4.2 (communication with a person represented by counsel), with Comments 1 and 4, and Rule 8.4 (misconduct), which correspond to the like-numbered Model Rule provisions. The analysis turns on whether the lawyer is "representing a client" when acting as a federal investigator, drawing on ABA Formal Opinion 95-396, 28 C.F.R. § 77.2(a), and the committee's Opinion 92-07.

Citations and references

Rules of Professional Conduct:

• MR 4.2 / SC Rule 4.2, Comments 1 and 4 (communication with represented persons; "representing a client")
• MR 8.4 / SC Rule 8.4 (misconduct)

Regulations:

• 28 C.F.R. § 77.2(a) (excluding attorneys employed as investigators from "attorney for the government")

Cases:

• In re Mettler, 748 P.2d 1010 (Or. 1988), securities examiner not subject to Rule 4.2 in that role

Other opinions cited:

• ABA Formal Opinion 95-396 (1995): investigators are not directly subject to Rule 4.2
• S.C. Bar Ethics Advisory Opinions 92-07, 86-10, and 11-01: capacity-based application of Rule 4.2 and pro se lawyers
• Philadelphia Op. 2010-3; North Dakota Op. 09-04; Connecticut Op. 97-23: capacity analysis in other roles

See also

• SC Bar Ethics Op. 11-01: Pro Se Lawyer and Rule 4.2
• SC Bar Ethics Op. 05-04: Suspicion vs. Knowledge
• ABA Formal Op. 06-443: Contacting Inside Counsel

Source

• Landing page: https://www.scbar.org/for-lawyers/quicklinks/legal-resources/ethics-advisory-opinions/ethics-advisory-opinion-11-04/
• Original PDF: https://www.scbar.org/media/l3mfhdbr/11-04.pdf

Original opinion text

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

UPON THE REQUEST OF A MEMBER OF THE SOUTH CAROLINA BAR, THE ETHICS ADVISORY COMMITTEE HAS RENDERED THIS OPINION ON THE ETHICAL PROPRIETY OF THE INQUIRER’S CONTEMPLATED CONDUCT. THIS COMMITTEE HAS NO DISCIPLINARY AUTHORITY. LAWYER DISCIPLINE IS ADMINISTERED SOLELY BY THE SOUTH CAROLINA SUPREME COURT THROUGH ITS COMMISSION ON LAWYER CONDUCT.

Ethics Advisory Opinion 11-04

S.C. Rules of Professional Conduct: Rules 4.2, 8.4

Facts:

Inquirer is a member of the South Carolina Bar currently working as an employee for a U.S. federal agency with the title of “Federal Investigator.” Inquirer’s job involves conducting administrative investigations of potential violations of certain federal laws. Where violations are found, Inquirer administers fines and/or collects money from the violator on behalf of aggrieved persons. Inquirer’s involvement with a target ends once litigation is initiated. Performance of these duties entails understanding and applying statutes and regulations and interacting on an adversarial basis with attorneys who represent the targets of investigations. While some investigators are attorneys, there is no requirement that investigators be attorneys, and many of them are not.

Some of the attorneys with whom Inquirer deals are unresponsive to Inquirer’s requests for information or opposed to Inquirer’s investigative findings. Inquirer has been encouraged by different supervisors to contact targets directly to convince them of the seriousness of the situation and attempt to resolve the investigation expeditiously. In the case of attorneys who are unresponsive, another factor is that the statute of limitations on the claim is running.

Question:

May Inquirer directly contact a target of an investigation who is represented by counsel?

Summary:

Yes. Rule 4.2 prohibits communication with a represented party by an attorney who is “representing a client.” As a federal investigator, Inquirer is not “representing a client,” and therefore the prohibition does not apply. However, Inquirer should take care to avoid overreaching.

Opinion

Rule 4.2, Communication with Person Represented by Counsel, provides:

In representing a client, a lawyer shall not communicate about the subject of the representation with a person 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 to do so by law or a court order.

(emphasis added). Rule 4.2 is intended to protect represented persons from “overreaching by other lawyers who are participating in the matter, interference by those lawyers with the client lawyer relationship and the uncounseled disclosure of information relating to the representation.” Comment 1.

An attorney is bound by the applicable Rules of Professional Conduct regardless of whether he or she is acting as an attorney at any given point in time. Ethics Adv. Op. 86-10. Certain rules, however, by their terms apply only when a lawyer is acting in a representative capacity. Rule 4.2 is one such rule: the prohibition against communications with a represented person does not apply to an attorney who is not “representing a client.”

The ABA addressed the scope and application of Rule 4.2 at length in Formal Opinion 95-396 (1995). Although Opinion 95-396 primarily concerned the applicability of Rule 4.2 to pre-arrest investigations of criminal activity by prosecutors, it included a discussion of attorneys’ vicarious responsibility for the conduct of investigators. In that context, the ABA noted that “investigators themselves are not directly subject to Rule 4.2, even if they happen to be admitted to the Bar (as many FBI agents are), because they are not, in their investigative activities, acting as lawyers: they are not ‘representing a client.’” See also 28 C.F.R. § 77.2(a) (excluding “attorneys employed as investigators” from the definition of “attorney for the government”).

This Committee addressed a question similar to the present inquiry in Ethics Opinion 92-07. There, an attorney wished to contact his wife’s former husband, who was represented by counsel, about matters concerning the attorney’s step-children. Recognizing that “Rule 4.2 appears to apply only to communications made by a lawyer while representing a client,” the Committee opined that because the attorney was not representing his wife, Rule 4.2 did not apply. Other jurisdictions have applied this reasoning to various situations in which an attorney’s communications with a represented person are not made in a representative capacity. See, e.g., In re Mettler, 748 P.2d 1010 (Or. 1988) (securities examiner); Phil. Bar Ass’n Prof’l Guidance Comm’n Op. 2010-3 (court-appointed child advocate); N.D. Bar Ass’n Ethics Comm.,Op. No. 09-04 (bankruptcy trustee); Conn. Bar Ass’n Ethics Op. 97-23 (equal employment opportunity counselor/investigator).

The Committee concludes that Rule 4.2 does not forbid contact with a represented person by a federal investigator simply because the investigator happens to be an attorney (provided he or she is not acting at the direction of an attorney who represents the agency, see Rule 4.2 cmt. 4). At the same time, the mere fact that an attorney’s title is “investigator” does not make Rule 4.2 per se inapplicable. See Cf. Phila. Bar Ass’n Prof’l Guidance Comm’n Op. 2010-3 (concluding that Rule 4.2 applies to a guardian ad litem whose duties “are in many respects coextensive with legal representation”).

Additionally, Inquirer should be mindful of the policies underlying the rule and thus should take care to avoid overreaching and should not act in a manner that undermines a target’s relationship with counsel. The Committee also advises that Inquirer is bound by other applicable Rules of Professional Conduct, including Rule 8.4.

The situations here and in 92-07 differ from the Committee’s opinions addressing the conduct of attorneys who are pro se litigants. See Ethics Adv. Ops. 11-01, 86-10.