Can a private party's lawyer contact government officials directly when the agency is represented by counsel in the matter?

Plain-English summary

Opinion E-95-1 addressed whether a lawyer for a private person in a non-criminal matter involving a governmental entity may make direct contact with government officials or employees about the matter when the lawyer knows the entity is represented by counsel. Under SCR 20:4.2, a lawyer generally may not communicate about the subject of the representation with a party known to be represented, absent the other lawyer's consent or legal authorization. The comment to the rule recognizes that a party to a controversy with a government agency has a right to speak with government officials about the matter, and that when an organization is the represented party, the prohibition extends to persons with managerial responsibility and to anyone whose act or omission may be imputed to the organization or whose statement may be an admission.

The committee drew out three principles. First, the private person involved in the matter may make direct contact with the government officials involved, but the person's lawyer generally may not. Second, the prohibition on the lawyer reaches only certain key officials of the entity, not all government employees. Third, it applies only to discussions about the particular matter, not to unrelated issues.

The committee noted a complication: pinning down when the government entity is "represented" in the matter. In litigation, an appearance usually makes representation clear; in transactional and negotiation settings it may depend on whether the entity's lawyer has notified the other lawyer, and once such notice is given the representation generally is established and direct contact with relevant officials becomes improper. The committee also recognized that open-meeting statutes and similar laws may require a public airing of government counsel's advice, sometimes letting opposing counsel address the decisionmakers in the same forum; in such cases the controlling law of the jurisdiction takes precedence over the direct-contact prohibition. In summary, SCR 20:4.2 bars a lawyer from contacting covered government officials about a matter when the lawyer knows the entity is represented, subject to the exceptions of the government lawyer's consent or laws clearly allowing the contact.

Currency note

This opinion was issued in 1995, before Wisconsin's July 1, 2007 adoption of the revised Rules of Professional Conduct (the state's Ethics 2000 update). The 2002 Ethics 2000 revisions later changed the SCR 20:4.2 comment language this opinion quotes. 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 private party's lawyer call government officials directly when the agency has counsel?

A: Generally no. The committee concluded that under SCR 20:4.2 the lawyer may not contact covered government officials about the matter once the lawyer knows the agency is represented, absent consent or legal authorization.

Q: Can the client themselves contact the government?

A: Yes. The committee concluded that the party involved in the controversy retains the right to speak directly with government officials about the matter, even though the party's lawyer generally may not.

Q: Does the bar cover every government employee?

A: No. The committee concluded that the prohibition reaches only key officials, such as those with managerial responsibility or whose acts may be imputed to the entity, and only as to the particular matter.

Q: Do open-meeting laws change the analysis?

A: They can. The committee concluded that where controlling law, such as an open-meeting statute, clearly permits the contact or a public airing of counsel's advice, that law takes precedence over the direct-contact prohibition.

Background and rules framework

The opinion interpreted SCR 20:4.2 / Model Rule 4.2 (communication with a represented person) as applied to government entities, relying on the rule's comment about parties' right to petition government and the categories of covered constituents, and recognizing the "authorized by law" exception for open-government statutes.

Citations and references

Rules of Professional Conduct:

• Wis. SCR 20:4.2 / Model Rule 4.2 (communication with a represented person)

See also

• WI Ethics Op. E-07-01: Contact With Constituents of a Represented Organization
• WI Ethics Op. E-96-3: Prosecutor Contact With Represented Persons Through Agency Staff

Source

• Landing page: https://www.wisbar.org/formembers/ethics/pages/formal-opinions.aspx
• Original PDF: https://www.wisbar.org/formembers/ethics/Ethics%20Opinions/E-95-1.pdf