Can a lawyer suing or negotiating against a city deal directly with the City Council or City Manager instead of the city attorney?

Plain-English summary

The inquiry posed two fact patterns. In the first, a person injured by a city-owned vehicle sued the city, and during settlement talks the city attorney recommended an amount; the plaintiff's counsel then appealed to the City Council or City Manager to obtain a higher settlement. In the second, a party who had breached a contract with the city, after the city obtained and tried to collect a judgment, had his counsel appeal directly to the City Council or City Manager to accept a lesser sum than the city attorney would accept. The question was whether either lawyer violated the Canons by negotiating with the Council or Manager rather than the city's counsel. The inquiry expressly excluded the situation of a private citizen appearing before his own governing body.

The Committee divided equally and reached no conclusion. The vote was 4-4.

The members who thought the conduct violated Canon 9 equated the municipal government to a corporation: the city is the actual opposing party of record, and although the city attorney is its legal counsel, the Council and Manager also only represent the city, just as a corporation acts through its directors. On that view, direct contact with the officers over the head of the city's lawyer would violate Canon 9, so counsel must negotiate only with the city's counsel.

The other members concluded that Canon 9 is not entirely mandatory in its language and does not bar appearances before city officials. They reasoned that barring such appearances would deny a citizen the right to appeal to the public officials who represent his interests, and that an important public policy favoring free access to public officials distinguished this case from ordinary situations where there is no legitimate reason to contact an adverse party's agents directly. On that view, a lawyer may ethically appear before appropriate city officials to urge his client's contentions.

Currency note

This opinion was issued in 1959, under the former Texas Canons of Ethics, which the Texas Disciplinary Rules of Professional Conduct replaced effective January 1, 1990. 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 Treat this page as historical context, not current guidance.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 mentioned here.

Common questions

Q: Did the Committee decide whether a lawyer may go over the city attorney?

A: No. The Committee divided equally, 4-4, and reached no conclusion on whether negotiating directly with a City Council or City Manager violates Canon 9.

Q: What was the argument that the conduct violated Canon 9?

A: Those members equated the city to a corporation: the city is the opposing party of record, and the Council and Manager represent it just as directors act for a corporation, so contacting them over the city attorney's head would violate Canon 9.

Q: What was the argument that it was permissible?

A: The other members read Canon 9 as not entirely mandatory and stressed a public policy of free access to public officials, concluding that a citizen may have his lawyer appear before city officials to urge his contentions.

Background and rules framework

The opinion interprets former Texas Canon 9, which governed communications with a party represented by counsel, in the context of a municipal party represented by a city attorney. The modern analog is ABA Model Rule 4.2, on communication with a represented person, which includes its own treatment of communications with government officials having authority over a matter.

Citations and references

Rules of Professional Conduct:

• MR 4.2 (communication with represented persons), as the modern analog
• Texas Canon 9 (former canon)

See also

• TX Ethics Op. 235: Letter to a Represented Plaintiff
• TX Ethics Op. 297: Talking Settlement to Adjusters
• TX Ethics Op. 339: Client Contact With Adverse Party

Source

• Landing page: https://www.legalethicstexas.com/resources/opinions/opinion-233/
• Original PDF: https://tcle-web.s3.amazonaws.com/public/documents/Opinion_233.pdf

Original opinion text

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

QUESTION PRESENTED

"A" is injured in an accident involving a city-owned vehicle. "A" retains counsel and files a suit against the city. During settlement negotiations the city attorney recommends an amount to "A's" counsel. In an effort to obtain a higher settlement, "A's" counsel appeals to the City Council or City Manager in his capacity as legal representative of "A."

"B" breaches contract which he has with the city. Following unsuccessful negotiations between the city attorney and "B's" counsel the city institutes suit and recovers judgment. After extensive but futile efforts to collect the payment the city attorney is asked by "B's" counsel to accept a lesser sum in full settlement of the judgment. The city attorney refuses to accept, and "B's" counsel appeals directly to the City Council or the City Manager, requesting they accept the lesser amount as full settlement.

Has either "A's" or "B's" counsel violated the Canons of Ethics in attempting to negotiate or compromise the matter with the City Council or City Manager rather than dealing with the City's counsel? This inquiry is not meant to question the propriety of a citizen appearing before the City Council, or the City Manager as its chief executive officer, in his capacity as a private citizen appearing before his governing body. Instead, it involves the propriety of an attorney appearing as legal representative for another person.

18 Baylor L. Rev. 313 (1966)

NEGOTIATIONS WITH OPPOSITE PARTY - DIRECT CONTACT WITH CITY COUNCIL OR CITY MANAGER
The committee divided equally on the question whether it violates Canon 9 for an attorney to negotiate directly with the City Council or City Manager rather than the attorney representing the city in the particular controversy.

Canon 9.

The committee is equally divided as to whether the conduct of counsel for "A" and "B" violates Canon 9. (4-4.)

Those members concluding that such conduct violate Canon 9 equate the municipal government to a corporation. The city itself is the actual "other party" of record in the cases. Although the city is represented by the city attorney as legal counsel, the City Council and City Manager also only represent the city. However, a city can act only through its officers, like a corporation acts through its directors. Direct contact with directors over the head of an attorney would violate Canon 9. Therefore, these members conclude that counsel must negotiate only with the city's counsel.

The other members conclude that Canon 9 is not entirely mandatory in its language and does not apply to appearance before the city officials. To rule that the attorney cannot appear before the City Council or City Manager would, in effect, deny the right of a citizen to effectively appeal to the public officials who represent his interests as well as those of other citizens of the community. In this case there is an important public policy in favor of free access to public officials by citizens, which policy distinguishes this case from the ordinary cases where there is no legitimate reason why an attorney should communicate directly with agents of an adverse party who is represented by legal counsel. These members therefore conclude that any citizen has the right to have his attorney appear before appropriate city officials to urge any contentions he may wish to make, and the attorney may ethically do so. (4-4. )

Tex. Comm. On Professional Ethics, Op. 233 (1959)