Can a lawyer contact an individual city council member directly during a lawsuit when the city is represented by the city attorney?

Plain-English summary

A plaintiff sued a municipality. The city attorney represented the city and was in settlement negotiations with the plaintiff's counsel. After the city, with council approval, offered a settlement the plaintiff considered inadequate, plaintiff's counsel telephoned an individual council member, without the city attorney's knowledge, to express disapproval of the offer. The question was whether that contact violated Rule 4.02.

The Committee concluded that it did. It quoted Rule 4.02(a), which bars a lawyer from communicating, or causing another to communicate, about the subject of the representation with a person, organization, or government entity the lawyer knows to be represented by another lawyer, absent that lawyer's consent or authorization by law. It also quoted Rule 4.02(c), which defines "organization or entity of government" to include persons presently having managerial responsibility that relates to the subject of the representation, and persons whose acts or omissions may make the entity vicariously liable.

Applying those provisions, the Committee concluded that Rule 4.02 prohibits a lawyer for one party from communicating about the subject of the representation with persons having managerial responsibility on behalf of the organization that relates to the subject matter. A city council member, contacted about the city's settlement position, fell within that prohibition.

Currency note

This opinion was issued in 1991, under the Texas Disciplinary Rules of Professional Conduct that took effect January 1, 1990. Texas did not adopt the ABA's Ethics 2000 revisions; its rules have been amended only piecemeal since, including the comprehensive 2021 revisions adopted by Texas Supreme Court order. 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 Treat this page as historical context, not current guidance.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: Can a lawyer call an individual city council member during a suit against the city?

A: The Committee concluded no, where the city is represented by the city attorney. Rule 4.02 bars communicating about the subject of the representation with government managers without the represented entity's lawyer's consent.

Q: Does Rule 4.02 apply when the represented "client" is a government entity?

A: Yes. Rule 4.02(c) defines "organization or entity of government" to include persons with managerial responsibility relating to the subject of the representation, so the rule reaches officials of a represented municipality.

Q: Which government people are off-limits under the rule?

A: Per the opinion, those presently having managerial responsibility related to the subject of the representation, and those whose acts or omissions may make the entity vicariously liable.

Background and rules framework

The opinion interprets Texas Disciplinary Rule 4.02 (communication with one represented by counsel; ABA Model Rule 4.2), including Rule 4.02(c)'s definition of a represented "organization or entity of government." The analysis applies the represented-person bar to officials of a government client and turns on whether the contacted person has managerial responsibility relating to the subject of the representation.

Citations and references

Rules of Professional Conduct:

• MR 4.2 (communication with person represented by counsel)
• Texas Disciplinary Rule 4.02, including Rule 4.02(c)

See also

• TX Ethics Op. 492: Rule 4.02 and Communication With City Employees in Grievances
• TX Ethics Op. 488: Advising a Client to Contact a Represented Creditor Directly
• ABA Formal Op. 06-443: Contact With an Organization's Inside Counsel
• ABA Formal Op. 502: Communication With a Represented Person by a Pro Se Lawyer

Source

• Landing page: https://www.legalethicstexas.com/resources/opinions/opinion-474/
• Original PDF: https://tcle-web.s3.amazonaws.com/public/documents/Opinion_474.pdf

Original opinion text

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

QUESTION PRESENTED

Is the communication by Plaintiff's counsel with City Counsel members described above a violation of Rule 4.02 of the Texas Disciplinary Rules of Professional Conduct?

STATEMENT OF FACTS

June 1991
Plaintiff has sued a municipality. The City Attorney of the Municipality represents the City and is engaged in settlement negotiations with Plaintiff through Plaintiff's counsel. Defendant, with the City Counsel's approval, has offered a certain sum in settlement. Plaintiff has taken the position that the amount offered is inadequate. Unbeknownst to the City Attorney's Office, Plaintiff's counsel telephones an individual Council member to express his disapproval of the City's settlement offer. When questioned about the propriety of such contact, Plaintiff's counsel refuses to acknowledge that the prohibition of such contact with the opposition's client is applicable when the client is a municipality.

DISCUSSION

Rule 4.02 of the Texas Disciplinary Rules of Professional Conduct provides in part as follows: (a) In representing a client, a lawyer shall not communicate or cause or encourage another to communicate about the subject of the representation with a person, organization or entity of government the lawyer knows to be represented by another lawyer regarding that subject, unless the lawyer has the consent of the other lawyer or is authorized by law to do so. . . . (c) For the purpose of this rule, "organization or entity of government" includes: (1) those persons presently having a managerial responsibility with an organization or entity of government that relates to the subject of the representation, or (2) those persons presently employed by such organization or entity and whose act or omission in connection with the subject of representation may make the organization or entity of government vicariously liable for such act or omission.

Yes. These provisions of Rule 4.02 prohibit communications by a lawyer for one party concerning the subject of the representation with persons having a managerial responsibility on behalf of the organization that relates to the subject matter of the representation.

CONCLUSION

Yes. These provisions of Rule 4.02 prohibit communications by a lawyer for one party concerning the subject of the representation with persons having a managerial responsibility on behalf of the organization that relates to the subject matter of the representation.

Tex. Comm. On Professional Ethics, Op. 474 (1991)