Does the no-contact rule (Rule 4.02) bar a lawyer representing a city employee in a grievance from communicating with other city employees?

Plain-English summary

The question (PEC 92-5) was whether Rule 4.02, the rule barring communication with a represented person, applies to an attorney who represents a union member in resolving grievances or other concerns arising out of municipal employment, or who negotiates policy matters, where no litigation is in progress or contemplated. A labor organization employed an attorney whose duties resembled those of its nonlawyer advocates: arranging informal meetings, contacting human-resources staff about benefits, discussing and lobbying on policy with management and council members, representing employees at disciplinary hearings, and investigating facts. The city attorney, who under the city charter represents all city officers and departments, had told the labor organization's attorney that Rule 4.02 barred him from communicating with any city employee having managerial responsibility related to the representation, or whose act or omission could make the city liable.

The Committee concluded that Rule 4.02 applies even though litigation was neither in progress nor contemplated. It pointed to Comment 3 to Rule 3.10, which addresses representation in a negotiation or other bilateral transaction with a governmental agency by referring the lawyer to Rules 4.01 through 4.04. The Committee read Rule 4.02 to prohibit, absent consent or authorization by law, communications with city employees presently having managerial responsibility relating to the subject of the representation, and with employees whose act or omission in connection with the subject could make the city vicariously liable. It tied this reading to its earlier interpretation of the predecessor rule (DR 7-104) in Opinion 461.

The Committee then identified the statutory exception. Under Vernon's Ann.Civ.St. art. 5154c, section 6, public employees retain the right to present grievances through a representative that does not claim the right to strike, and the Texas Supreme Court has held that "representative" includes attorneys (Sayre v. Mullins). So to the extent the attorney acts as a city employee's designated representative within the grievance procedure, communications made in that procedure are "authorized by law" within Rule 4.02(a) and are permitted. Outside the grievance procedure, the attorney is bound by Rule 4.02 like any other lawyer and must obtain the city attorney's consent before contacting managerial employees or those whose acts could make the city vicariously liable; consistent with Opinion 461, a non-managerial employee whose conduct is not the subject of the controversy may be interviewed if the attorney discloses his connection and the purpose of the interview.

Currency note

This opinion was issued in 1992, 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: Does Rule 4.02 apply when there is no litigation pending or contemplated?

A: The Committee concluded yes. Comment 3 to Rule 3.10 routes a lawyer in a negotiation or bilateral transaction with a governmental agency to Rules 4.01 through 4.04, so Rule 4.02's prohibitions apply even without litigation.

Q: Which city employees were off-limits without consent?

A: The opinion read Rule 4.02 to cover employees presently having managerial responsibility relating to the subject of the representation, and employees whose act or omission in connection with the subject could make the city vicariously liable.

Q: When can the lawyer communicate with city employees anyway?

A: The Committee concluded that where a statute (art. 5154c, section 6) authorizes the employee's chosen representative to act in the grievance procedure, contacts made within that procedure are "authorized by law" under Rule 4.02(a) and are permitted.

Q: Can the lawyer interview a rank-and-file city employee?

A: Per the opinion and Opinion 461, if the employee is not an officer or managing employee and his conduct is not the subject of the controversy, the attorney may interview him provided the attorney fully discloses his connection with the matter and explains the purpose of the interview.

Background and rules framework

The opinion interprets Texas Disciplinary Rule 4.02 (communication with one represented by counsel; ABA Model Rule 4.2), which bars a lawyer from communicating about the subject of a representation with a person, organization, or entity of government the lawyer knows to be represented, absent the other lawyer's consent or authorization by law, and which defines "organization or entity of government" to include persons with managerial responsibility relating to the subject and persons whose acts could create vicarious liability. It draws on Comment 3 to Rule 3.10 (advocate in nonadjudicative proceedings; Model Rule 3.9), which refers such representation to Rules 4.01 through 4.04, and on the statutory grievance right in Vernon's Ann.Civ.St. art. 5154c, section 6.

Citations and references

Rules of Professional Conduct:

• MR 4.2 (communication with person represented by counsel)
• MR 3.9 (advocate in nonadjudicative proceedings)
• Texas Disciplinary Rules 4.02 and 3.10 (Comment 3)

Statutes:

• Vernon's Ann.Civ.St. art. 5154c, section 6 (public employees' right to present grievances through a representative not claiming the right to strike)

Cases:

• Sayre v. Mullins, 681 S.W.2d 25 (Tex. 1984), interpreting "representative" to include attorneys
• Lubbock Professional Firefighters v. City of Lubbock, 742 S.W.2d 413 (Tex. App. 1987), a city may not deny an employee's designated representative the right to represent the employee in the grievance procedure

Other opinions cited:

• Tex. Ethics Op. 461 (Jan. 1989): interpreting the predecessor no-contact rule (DR 7-104) on contacts with employees of a represented entity

See also

• ABA Formal Op. 06-443: Contacting an Organization's Inside Counsel
• CA Op. 1979-49: A DA Contacting a Represented Criminal Defendant
• FL Bar Ethics Op. 76-21: Contacting a Represented Adverse Party
• TX Ethics Op. 528: Hiring a Lawyer Married to an Opposing Party's Employee

Source

• Landing page: https://www.legalethicstexas.com/resources/opinions/opinion-492/
• Original PDF: https://tcle-web.s3.amazonaws.com/public/documents/Opinion_492.pdf

Original opinion text

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

QUESTION PRESENTED

[PEC 92-5]
Do the prohibitions of Rule 4.02 apply to an attorney who represents a union member in resolving grievances or other concerns arising out of municipal employment, or who negotiates on policy matters, where there is neither litigation in progress nor contemplated?

STATEMENT OF FACTS

A "labor organization" as defined by Vernon's Ann.Civ.Stat. art. 5154c, section 5, has on its staff non-attorney advocates who represent municipal employees in presentation of grievances and assist employees in nonjudicial resolution of workplace problems. This labor organization also employs an attorney whose duties and obligations are not substantially different from the non-attorneys in being responsible for assisting in the nonjudicial resolution of workplace issues. No representatives of the union claim a right to strike and all, including the attorney, are licensed "labor organizers" as required by art. 5154a. The type of work includes:
Arranging meetings between supervisors and employees to informally work out problems;
Contacting Personnel Managers and staff at the Human Resources Department to initiate, inquire about, or expedite application for City benefits such as Return to Work programs, Sick Leave Transfer benefits, Wage Continuation Benefits, Reclassification and Transfer requests or other programs which the City operates for the benefit of employees;
Discussing with upper management and City Council members proposed policy initiatives and procedures for their implementation;
Lobbying City Council members;
Representing employees at informal disciplinary hearings before his or her supervisor and upward through the process on appeal to a Department head and possibly to a Grievance Panel;
Investigating facts and collecting statements from employees, both rank and file as well as supervisory, in preparation for effective representation.
The Charter for the Municipality reads:
"The city attorney shall be the legal advisor of, and attorney for, all of the officers and departments of the city, and he or she shall represent the city in all litigation and legal proceedings."
The city attorney has informed the labor organization's attorney that he may not communicate with, nor cause another to communicate with, any city employee who has "managerial responsibility which relates to the subject of the representation." This prohibition is based upon the city attorney's reading of Rule 4.02 of the Texas Disciplinary Rules of Professional Conduct. In further reliance upon Rule 4.02, the city attorney has enjoined the labor organization's attorney from communicating, directly or indirectly, "with any city employee whose act or omission make the city liable for such act or omission" without the consent of the city attorney.

DISCUSSION

The Texas Disciplinary Rules of Professional Conduct, Rule 4.02 provides that:

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 to do so ...
[b]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.

This rule applies to all attorneys licensed by the State of Texas and practicing in Texas. It prohibits the above-described communications without the other lawyers' consent unless otherwise "authorized by law." This new rule incorporates DR 7-104 of the former Texas Code of Professional Responsibility and the interpretation of that rule by the Professional Ethics Committee most recently published in Ethics Opinion 461 (January 1989).

In addition, comment three to Rule 3.10 concerning advocates in nonadjudicative proceedings addresses the representation of a client in a negotiation or other bilateral transaction with a governmental agency by referring the lawyer to rules 4.01 through 4.04. Therefore, despite the fact that litigation is neither in progress nor contemplated, the prohibitions of Rule 4.02 apply.

Vernon's Ann.Civ.St. art. 5154c §6 states that "[t]he provisions of this Act shall not impair the existing right of public employees to present grievances concerning their wages, hours of work, or conditions of work individually or through a representative that does not claim the right to strike." The Texas Supreme Court has interpreted the term "representative" to include attorneys. Sayre v. Mullins, 681 S.W.2d 25 (Tex.1984). A city may not deny the employee's chosen representative, including an attorney, the right to represent an aggrieved city employee at any stage of the grievance procedure, so long as the employee has designated that representative and that representative does not claim the right to strike. Lubbock Professional Firefighters v. City of Lubbock, 742 S.W.2d 413, 417 (Tex.App.—Amarillo, 1987 ref. n.r.e.).

Therefore, to the extent that an attorney is acting as a city employee's designated representative within a grievance procedure, the attorney may communicate with city employees involved in that procedure.

Apart from participation in the designated grievance procedure, which is communication "authorized by law" within the meaning of Rule 4.02(a), the attorney representing a municipal employee is bound by the same disciplinary rules as any other attorney in the State of Texas in representing his client. The attorney must obtain consent from the city attorney prior to communicating with any city employee presently having managerial responsibility relating to the subject of the representation or with those persons presently employed by the city whose act or omission in connection with the subject of the representation may make the city vicariously liable for such act or omission. As previously discussed by the committee in Opinion 461 in a similar situation, if the employee with whom communication is made is not an officer or managing employee of the city and if the conduct by the employee is not the subject of the controversy, then he may be interviewed by the attorney provided the attorney makes full disclosure of his connection with the matter and explains the purpose of the interview.

The city employee has an absolute right to be represented by his designated representative including an attorney, at any stage of the grievance procedure, either formal or informal. Outside the communications made as part of the grievance procedure, the attorney is subject to the constraints imposed by the Texas Disciplinary Rules of Professional Conduct regarding communication with one represented by counsel.

CONCLUSION

The city employee has an absolute right to be represented by his designated representative including an attorney, at any stage of the grievance procedure, either formal or informal. Outside the communications made as part of the grievance procedure, the attorney is subject to the constraints imposed by the Texas Disciplinary Rules of Professional Conduct regarding communication with one represented by counsel.

Tex. Comm. On Professional Ethics, Op. 492 (1992)