Can a government lawyer contact a represented party without counsel's consent based on a Justice Department directive (the Thornburgh Memorandum)?
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This page answers the general question as of 1991. Ezel answers yours: whether it's allowed on your facts, under the current rules of professional conduct in your state, with citations.
Plain-English summary
Opinion E-91-6 (1991) responded to a 1989 Justice Department policy (the Thornburgh Memorandum) asserting that U.S. attorneys, their assistants, and investigative agents were exempt from the professional-conduct rules barring contact with parties represented by counsel, and that state supreme courts and federal district courts lacked authority to regulate Justice Department lawyers' communications with represented parties. The committee was asked whether a Wisconsin-licensed government lawyer may ethically communicate about the subject of a representation with a party known to be represented, without the other lawyer's consent, and whether such a lawyer may rely on a superior's directive exempting the lawyer from SCR 20:4.2. The committee answered no to both.
The committee quoted SCR 20:4.2, under which a lawyer representing a client shall not communicate about the subject of the representation with a party the lawyer knows to be represented by another lawyer, unless the other lawyer consents or the contact is authorized by law. It emphasized that Rule 4.2, its predecessor DR 7-104(A)(1), or substantially similar rules have been adopted in all fifty states and the District of Columbia and by numerous federal district courts, and that SCR 20:4.2 applies to all lawyers practicing in Wisconsin, whether in private practice or government service. The committee noted Congress's and the Supreme Court's recognition of states' power to license and regulate lawyers, and cited authority that government lawyers do not shed their obligations as officers of the court.
The committee relied on decisions holding federal government lawyers subject to state contact rules, including United States v. Hammad and United States v. Lopez, in which the court held Justice Department lawyers bound by the state ethics code's adoption of DR 7-104 regardless of the Thornburgh Memorandum, reasoning that without such restraint a prosecutor's authority to contact represented persons "would be virtually limitless." The committee concluded that all government lawyers licensed in Wisconsin are bound by SCR 20:4.2 and that a directive or policy from a superior unilaterally exempting the lawyer does not in any way diminish the duty to comply.
Currency note
This opinion was issued in 1991, before Wisconsin's July 1, 2007 adoption of the revised Rules of Professional Conduct (the state's Ethics 2000 update). SCR 20:4.2 (communication with a represented person) has been revised since, and the federal landscape later changed (for example, the McDade Amendment subjecting federal lawyers to state rules). 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 government lawyer contact a represented party without the other lawyer's consent?
A: No. The committee concluded SCR 20:4.2 bars a Wisconsin-licensed lawyer, including one in government service, from communicating about the matter with a party known to be represented, absent the other lawyer's consent or legal authorization.
Q: Could a Justice Department lawyer rely on the Thornburgh Memorandum?
A: No. The committee concluded that a directive or policy from a superior purporting to exempt the lawyer from SCR 20:4.2 does not diminish the lawyer's duty to comply with the rule.
Q: Does SCR 20:4.2 apply to government lawyers at all?
A: Yes. The committee concluded that SCR 20:4.2 applies to all lawyers practicing in Wisconsin, whether in private practice or government service, because government lawyers do not shed their duties as officers of the court.
Background and rules framework
The opinion interprets SCR 20:4.2 / Model Rule 4.2 (communication with a person represented by counsel), and its predecessor DR 7-104(A)(1), as binding on government lawyers licensed in Wisconsin notwithstanding contrary federal executive-branch policy. It grounds that conclusion in the states' recognized authority to license and regulate lawyers and in federal decisions applying state contact rules to government attorneys.
Citations and references
Rules of Professional Conduct:
- Wis. SCR 20:4.2 / Model Rule 4.2 (communication with a represented person); former DR 7-104(A)(1)
Cases:
- United States v. Hammad, 858 F.2d 834 (2d Cir. 1988) (government lawyers subject to contact rules)
- United States v. Lopez, 765 F. Supp. 1433 (N.D. Cal. 1991) (Justice Department lawyers bound by state ethics code despite the Thornburgh Memorandum)
- Berger v. United States, 295 U.S. 78 (1935) (government lawyer's duties as officer of the court)
See also
- WI Ethics Op. E-95-1: Communicating With a Represented Government Agency
- WI Ethics Op. E-96-3: Prosecutor Contact With Represented Persons via Agency Staff
- ABA Formal Op. 97-408: Communication With a Government Agency Represented by Counsel
Source
- Landing page: https://www.wisbar.org/formembers/ethics/pages/formal-opinions.aspx
- Original PDF: https://www.wisbar.org/formembers/ethics/Ethics%20Opinions/E-91-6.pdf
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