Can opposing counsel contact a city's employees directly, or does the no-contact rule treat them as represented by the city's lawyer?

Plain-English summary

The inquiry concerned communication with city employees by adverse counsel. The committee was of the opinion that nothing in the Rules of Professional Conduct prohibits such communication, subject to two exceptions: where the employee is a speaking agent for the city regarding the matter that is the subject of the representation, or where there is an actual attorney-client relationship between the prosecutor and the city employee in the matter that is the subject of the litigation.

The committee also directed attention to a relevant Washington Supreme Court opinion, Wright v. Group Health Hospital, 103 Wn.2d 192, 691 P.2d 564 (1984).

Currency note

This opinion was issued in 1989, before the Washington State Bar Association's adoption of the 2006 revisions to the Washington Rules of Professional Conduct. 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 Treat this page as historical context, not current guidance.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 opposing counsel talk to a city's employees directly?

A: Under this 1989 opinion, generally yes. The committee found no general bar to adverse counsel communicating with city employees.

Q: When is contact with a city employee off-limits?

A: When the employee is a speaking agent for the city on the matter, or when the prosecutor and the employee have an actual attorney-client relationship in the matter.

Q: What authority did the committee point to?

A: The Washington Supreme Court's decision in Wright v. Group Health Hospital, 103 Wn.2d 192, 691 P.2d 564 (1984).

Background and rules framework

RPC 4.2, Washington's version of ABA Model Rule 4.2, bars a lawyer from communicating about the subject of a representation with a person the lawyer knows to be represented by another lawyer, absent consent. Applied to a governmental organization, the committee limited the no-contact bar to employees who are speaking agents for the city on the matter or who have an actual attorney-client relationship with the city's lawyer, pointing to Wright v. Group Health Hospital for the controlling analysis.

Citations and references

Rules of Professional Conduct:

• ABA Model Rule 4.2 (communication with person represented by counsel)
• Washington RPC 4.2

Cases:

• Wright v. Group Health Hospital, 103 Wn.2d 192, 691 P.2d 564 (Wash. 1984), cited by the committee as relevant authority on contact with an organization's employees.

See also

• WA Ethics Op. 1265: Prosecutor Employing a Judge's Spouse
• WA Ethics Op. 1268: Legislator-Lawyer Suing the State

Source

• Landing page: https://ao.wsba.org/print.aspx?ID=354

Original opinion text

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

The Committee reviewed your inquiry concerning communication with city employees by adverse counsel. The Committee was of the opinion that nothing in the Rules of Professional Conduct prohibits such communication unless the employee is a speaking agent for the city regarding the matter which is the subject of the representation, or there is an actual attorney/client relationship between the prosecutor and the city employee in the matter which is the subject of [litigation]. The Committee also directed me to call your attention to a relevant Supreme Court opinion, Wright v. Group Health Hospital, 103 Wn.2d 192, 691 P.2d 564 (1984).