Does the no-contact rule apply to a licensed lawyer working a non-legal government job who contacts represented claimants?

Plain-English summary

The inquiry posed two questions: whether an attorney who serves as a Tort Claims Administrator for the State of Washington, and his or her investigator (also a licensed attorney), may make ex parte contacts with injured claimants and their treating physicians when the claimants are represented by counsel; and whether a licensed attorney who works for the State in a non-legal capacity is subject to the RPCs.

On the first question, the committee said the RPC Committee lacks authority to decide legal questions and declined to respond because the question calls for a legal determination. On the second, the committee concluded that the Rules of Professional Conduct apply to all licensed attorneys in Washington. Whether RPC 4.2 applies depends on whether the licensed attorney is providing legal representation or advice; assuming, as stated, that no legal advice is being provided, RPC 4.2 would not preclude the ex parte contact. The committee added that other RPCs apply to all attorneys regardless of whether legal advice is being provided, including RPC 8.4.

Currency note

This opinion was issued in 1997, before the Washington State Bar Association's adoption of the 2006 revisions to the 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 Treat this page as historical context, not current guidance.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. Washington's cited rules correspond to ABA Model Rules 4.2 (communication with a person represented by counsel) and 8.4 (misconduct).

Common questions

Q: Do the lawyer rules apply to a licensed attorney in a non-legal government job?

A: Yes. The committee concluded the Rules of Professional Conduct apply to all licensed attorneys in Washington.

Q: Does the no-contact rule, RPC 4.2, bar the contact here?

A: The committee said whether RPC 4.2 applies depends on whether the attorney is providing legal representation or advice; assuming none is, RPC 4.2 would not preclude the ex parte contact.

Q: Are any rules still in play in the non-legal role?

A: Yes. The committee said other RPCs apply regardless of whether legal advice is being provided, including RPC 8.4.

Q: Did the committee decide whether the contacts themselves were proper?

A: No. The committee declined to answer the first question because it calls for a legal determination outside the RPC Committee's authority.

Background and rules framework

The opinion applied RPC 4.2 (the no-contact rule for communicating with a person represented by counsel, corresponding to ABA Model Rule 4.2) and RPC 8.4 (misconduct, corresponding to ABA Model Rule 8.4) to a licensed attorney working in a non-legal state role. The committee tied RPC 4.2's reach to whether the attorney is providing legal representation or advice, while treating RPC 8.4 and the rules generally as applicable to all licensed attorneys.

Citations and references

Rules of Professional Conduct:

• ABA Model Rule 4.2 (communication with person represented by counsel); Washington RPC 4.2
• ABA Model Rule 8.4 (misconduct); Washington RPC 8.4

See also

• WA Ethics Op. 1746: Alternating Prosecutor and Defense Roles
• WSBA Ethics Op. 1165: Aiding Unauthorized Practice

Source

• Landing page: https://ao.wsba.org/print.aspx?ID=808

Original opinion text

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

Advisory Opinion: 1738
Year Issued: 1997
RPC(s): RPC 4.2; 8.4
Subject: Ex parte contact with represented party when lawyer employed in non-legal capacity

You asked two questions: (1) Whether an attorney, who is a Tort Claims Administrator for the State of Washington, and his/her investigator (also a licensed attorney) may make ex parte contacts with injured claimants and their treating physicians, when the claimants are represented by counsel and, (2) Is a licensed attorney who works for the State of Washington in a non-legal capacity subject to the RPCs? In response to question (1): The RPC Committee lacks authority to provide decisions to legal questions. As the question presented calls for a legal determination, the Committee declines to respond to the question. In response to question (2): the Rules of Professional Conduct do apply to all licensed attorneys in Washington. Whether RPC 4.2 applies depends on whether the licensed attorney is providing legal representation or advice. Assuming, as you state, that no such legal advice is being provided, RPC 4.2 would not apply to preclude you from having ex parte contact. Other RPCs would apply to all attorneys regardless of whether legal advice is being provided, including RPC 8.4.