Can a lawyer communicate directly with a low-level government employee when the government agency is represented by counsel?

Plain-English summary

The committee addressed whether a lawyer may communicate directly with low-level government employees when the government entity is represented by counsel. RPC 4.2 bars communicating about the subject of the representation with a person the lawyer knows to be represented, absent consent, a court order, or authorization by law. The question raised two issues: whether a low-level government employee is a person represented by the entity's lawyer, and whether the First Amendment right to petition makes the contact "authorized by law."

On the first issue, the committee applied Wright v. Group Health Hospital, which RPC 4.2's comments identify as controlling in Washington. Under Wright, the rule reaches only the entity "control group," meaning employees with managing or speaking authority to bind the organization. Employees who merely witnessed an event, or whose acts or omissions caused the event, are not within the rule. Comment 7 codifies this by limiting the prohibition to an employee who supervises, directs, or regularly consults with the organization's lawyer about the matter, or who can obligate the organization on the matter. The committee also noted that a government lawyer may not instruct all agency employees to refuse ex parte contact, and may not block contact merely by asserting it represents every employee; for RPC 4.2 to apply to an individual employee, the government lawyer must actually have an attorney-client relationship with that specific employee, a fact-specific determination. So if low-level employees do not supervise, direct, or regularly consult with the government lawyer, cannot obligate the government on the matter, and are not individually represented, the opposing lawyer may contact them directly.

On the second issue, the committee declined to adopt ABA Op. 97-408. It found that opinion not entirely consistent with RPC 4.2, both because it rested on a later-revised comment and because it imposed an advance-notice-to-government-counsel requirement with no basis in the text of RPC 4.2 or its comments. The committee found little authority and no controlling Washington precedent on whether the right to petition authorizes direct contact otherwise barred by RPC 4.2, and was unable to opine on that question. It noted that some contacts with government employees are "authorized by law" in specific cases apart from the right to petition (for example, serving a summons and complaint directly, per Advisory Opinion 201502).

In practice

Under the Washington rules as they stood at the time of the opinion, the committee held that RPC 4.2's bar on contacting a represented government entity's employees is governed by Wright v. Group Health: only employees with managing or speaking authority to bind the agency, or who are individually represented, are off limits. The opinion holds that a government lawyer cannot expand that protection by directing all employees to decline contact or by claiming to represent every employee. The committee declined to follow ABA Op. 97-408's policy-contact framework and advance-notice requirement, and left open whether the right to petition independently authorizes contact, finding no controlling Washington authority.

Common questions

Q: Can a lawyer contact a low-level government employee whose agency has counsel?

A: Yes, qualified. The committee held that under Wright v. Group Health, RPC 4.2 reaches only employees with managing or speaking authority to bind the agency or who are individually represented, so a lawyer may contact lower-level employees who are merely witnesses or whose acts caused the alleged injury.

Q: Can a government lawyer tell all agency employees not to talk to opposing counsel?

A: No. The committee held, following Wright, that it is improper for the entity to instruct its employees not to speak with the opposing party's lawyers, although employees are not required to meet ex parte if they choose not to.

Q: Does a government lawyer represent every employee just by saying so?

A: No. The committee held that for RPC 4.2 to apply to a specific employee, the government lawyer must actually have an attorney-client relationship with that employee, a fact-specific determination that the committee could not resolve in the abstract.

Q: Did the committee decide whether the right to petition allows direct contact?

A: No. The committee declined to adopt ABA Op. 97-408 and found no controlling Washington authority, so it was unable to opine on whether the constitutional right to petition makes otherwise-prohibited contact "authorized by law."

Background and rules framework

The opinion interprets Washington RPC 4.2 (Model Rule 4.2, communication with a person represented by counsel), as applied to organizational and government employees through Wright v. Group Health Hospital and Comments 7 and 10. It considers and rejects the approach of ABA Formal Op. 97-408 on contacts with represented government agencies, and discusses the "authorized by law" exception in the context of the constitutional right to petition (U.S. Const. amend. I; Wash. Const. art. I, § 4).

Citations and references

Rules of Professional Conduct:

• Model Rule 4.2 / Washington RPC 4.2 (communication with represented persons; organizational employees)

Cases:

• Wright v. Group Health Hospital, 103 Wn.2d 192, 691 P.2d 564 (1984), which employees of a represented entity are "parties" under the rule
• Bohn v. Cody, 119 Wn.2d 357 (1992), existence of an attorney-client relationship

Other opinions cited:

• ABA Formal Op. 97-408: communication with a represented government agency (committee declines to adopt)
• WSBA Advisory Opinion 201502: process server's communication with an opposing party

See also

• WA Ethics Op. 201502: process server's communication with an opposing party
• ABA Formal Op. 97-408: communication with a represented government agency
• ABA Formal Op. 91-359: contact with a former employee of an adverse corporate party

Source

• Landing page: https://ao.wsba.org/print.aspx?ID=1690

Original opinion text

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

Advisory Opinion: 201803
Year Issued: 2018
RPC(s): RPC 4.2, ABA Opinion 97-408
Subject: Communication with Represented Government Employee

Issue presented: May an attorney communicate directly with low-level government employees if the government entity is represented by counsel?

Discussion:

RPC 4.2 provides: “In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order.”

This inquiry raises two issues under RPC 4.2. First, is a low-level staff employee of a government entity a person represented by a lawyer for the entity? Second, does the First Amendment right to petition the government for redress mean that the contact is “authorized . . . by law”?

A. Contacts with employee of a represented entity

As comment [10] to RPC 4.2 indicates, “[w]hether and how lawyers may communicate with employees of an adverse party is governed by Wright v. Group Health Hospital, 103 Wn.2d 192, 691 P.2d 564 (1984).” In Wright, our Supreme Court held that Rule 4.2 only applies to communications with what has come to be called the entity “control group,” which Wright more specifically defines to consist of “only those employees who have the legal authority to bind’ the corporation in a legal evidentiary sense, i.e., those employees who havespeaking authority’ for the corporation.” 103 Wn.2d at 200.

We find no reason to distinguish between employees who in fact witnessed an event and those whose act or omission caused the event leading to the action. It is not the purpose of the rule to protect a corporate party from the revelation of prejudicial facts. Accord, Coburn v. Seda, 101 Wash.2d 270, 276–77, 677 P.2d 173 (1984) (discovery immunity statute will be strictly construed; it does not grant an immunity to information available from original sources). Rather, the rule’s function is to preclude the interviewing of those corporate employees who have the authority to bind the corporation. H. Drinker, Legal Ethics 201 (1953).

We hold current Group Health employees should be considered “parties” for the purposes of the disciplinary rule if, under applicable Washington law, they have managing authority sufficient to give them the right to speak for, and bind, the corporation. Since former employees cannot possibly speak for the corporation, we hold that [the predecessor to RPC 4.2] CPR DR 7–104(A)(1) does not apply to them.

Id. 103 Wn.2d at 200-01. Thus, under Wright, contacts with government employees who are potential witnesses and/or those whose governmental acts or omissions caused an alleged injury are not subject to the rule unless either they (a) have retained their own attorney or are individually represented by counsel or (b) have “managing/speaking” authority for the agency.

Comment 7 to RPC 4.2 attempts to codify Wright by stating that the Rule only prohibits contact with an employee who “supervises, directs or regularly consults with the organization’s lawyer concerning the matter or has the authority to obligate the organization with respect to the matter.” Similarly, Comment 10 adds that the matter is governed by the Wright case. If an employee is not in that limited class of persons, RPC 4.2 does not apply to the communication.

A government lawyer may not instruct all agency employees not to have ex parte contacts with outside lawyers. The Wright case addressed this possibility and concluded it was improper for an entity to advise its employees not to speak with the opposing party’s attorneys but that the employees were not required to meet ex parte with the opposing counsel. Id., 103 Wn.2d at 202-03. See also RPC 3.4, cmt [5] which explains that “Washington did not adopt Model Rule 3.4(f), which delineates circumstances in which a lawyer may request that a person other than a client refrain from voluntarily giving information to another party, because the Model Rule is inconsistent” with Wright.

However, an opposing counsel who knows that the government lawyer represents an individual government employee may not contact that employee. This does not mean that the government lawyer may prevent such contacts simply by asserting that the government lawyer represents every employee of the government. Rather, for RPC 4.2’s prohibition on ex parte contacts to apply, the government lawyer has to have an attorney-client relationship with that specific employee. n.1 This advisory opinion cannot address whether an attorney-client relationship exists between the government lawyer and low-level agency employees because that determination would need to be made for each individual. “The essence of the attorney/client relationship is whether the attorney's advice or assistance is sought and received on legal matters. . . The existence of the relationship ‘turns largely on the client's subjective belief that it exists.’" Bohn v. Cody, 119 Wn.2d 357, 363, (quoting In re McGlothlen, 99 Wn.2d 515, 522, 663 P.2d 1330 (1983)).

Thus, if the low-level government employees do not supervise, direct or regularly consult with the government lawyer concerning the matter, do not have the authority to obligate the government with respect to the matter, and are not individually represented by the government lawyer, the opposing lawyer may contact those employees directly.

B. “Authorized by law” exception

If RPC 4.2 applies to the government employee as discussed above, the opposing counsel may not contact the employee without the government lawyer’s consent unless the contact is authorized by law or court order. Here, a key question is whether the constitutional right to petition for a redress of grievances, U.S. Con., amendment 1 and Washington Con., Art. 1, sec. 4, permits contact with such a government employee under the “authorized by law” exception to RPC 4.2. Like the rights to speech and assembly, the petition right “is subject to reasonable restraints and limitations as are other rights protected by the federal and state constitutions.” State v. Gossett, 11 Wn. App. 864, 866, 527 P.2d 91, 93 (1974).

Unfortunately, there is limited legal precedent as to whether and to what extent the right to petition makes direct contact with a government employee “authorized by law” under RPC 4.2.

ABA Opinion 97-408 addresses this question, but its analysis is not entirely consistent with RPC 4.2. That opinion concludes that “Rule 4.2 does not prohibit a lawyer representing a private party in a controversy with the government from communicating directly with governmental officials who have authority to take or recommend action in the matter, provided the communication is solely for the purpose of addressing a policy issue, including settling the controversy.” (Footnote omitted). However, that opinion was based on a comment that was later revised. In addition, the opinion also states that “the lawyer for the private party must always give government counsel advance notice that it intends to communicate with officials of the agency to afford such officials an opportunity to discuss with government counsel the advisability of entertaining the communication.” This requirement has no basis in the text of RPC 4.2 or even its comments. For these reasons, we decline to adopt the reasoning of ABA Opinion 97-408.

There is little other authority and no controlling Washington precedent that addresses whether the constitutional right to petition authorizes direct contact with a government employee. While certain communications with a government employee would fall within the right to petition, RPC 4.2’s requirement that such communications be directed to the government lawyer may be found to be a reasonable restriction.

The Committee therefore is unable to provide an opinion on whether the right to petition would permit opposing counsel to communicate directly with a government employee if that communication is otherwise prohibited by RPC 4.2.

Contacts with government employees may be “authorized by law” in specific kinds of cases, quite apart from any authority contained in the right to petition. For example, serving a summons and complaint directly on a represented opposing party is authorized by law. Advisory Opinion 201502. But identification or cataloguing of such legal authority is beyond the scope of this opinion.

Footnotes

1. RPC 1.13(g) and 1.7 governs whether the government lawyer may represent both the government and a government employee individually. That issue is beyond the scope of this opinion.