Cba Ethics Committee Opinion
| Publication year | 1994 |
| Pages | 329 |
| Citation | Vol. 23 No. 2 Pg. 329 |
1994, February, Pg. 329. CBA Ethics Committee Opinion
The Ethics Committee of the Colorado Bar Association (the "Committee") has received inquiries concerning the scope of the ethical prohibition on ex parte contacts with a government organization(fn1) represented by counsel. Situations frequently arise in and outside of litigation where a lawyer may wish to contact public officials, public bodies, agency employees and other government personnel about governmental decisions or conduct.
Several years ago, in the broader context of ex parte contacts with an organizational party, the Committee issued CBA Ethics Committee Formal Opinion 69 (Revised June 20, 1987) ("Opinion 69") [see "CBA Revised Ethics Opinion No. 69: Communicating with the Employee or Former Employee of an Adverse Party Organization," 16 The Colorado Lawyer 1429 (Aug. 1987)]. This opinion serves to supplement Opinion 69 and provide more particular guidance with respect to contacts with government organizations. Because there is a relative dearth of case law on this subject, the Committee has analyzed and relied upon a number of opinions from other state bar associations that have considered the propriety of ex parte contacts with a government organization, in addition to the few reported decisions.
In general, the ethical rule prohibiting ex parte contacts with an organization represented by counsel in a particular matter about the subject matter of that representation applies with equal force to a government organization. As in the case of a non-government organization, an attorney may make ex parte contact with employees or officials who are not "managerial employees," i.e., the so-called "bystander witnesses." Managerial employees, as described in Opinion 69, are those who, with respect to the subject matter of the representation, have the authority to commit the government organization to a position or whose acts or omissions can be imputed to the government or whose statements may be admissible against the government organization.
The fundamental constitutional rights to speak and to petition one's government for the redress of grievances may in some circumstances conflict with this general ethical rule. In order to balance these competing concerns, an attorney may make ex parte contact with that more limited group of government employees or elected officials who are only considered "managerial employees" in the sense that their statements may be admissible against the government organization, but who are not in positions of authority and whose conduct is not at issue in contemplated or commenced litigation or other proceedings. In addition, in the context of a legislative determination or rulemaking by an agency, ex parte contact with the members of the legislative body or agency is permissible even though they are obviously "managerial employees," unless the ex parte contact is specifically prohibited by law. It is important to keep in mind that in any setting ex parte contacts are permissible with the prior consent of the attorney representing the government entity.
The ethical principle at issue is codified in Rule 4.2 of the Colorado Rules of Professional Conduct, which provides as follows:
In representing a client, a lawyer shall not communicate about the subject of the representation with a party 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 by law to do so.
The "Committee Comment" to Rule 4.2 makes clear that the ethical principle embodied is essentially the same as contained in DR7--104(A) under the now superseded Code of Professional Responsibility. Therefore, Opinion 69, which is based upon DR7--104(A), continues to define the general scope of prohibited ex parte contacts with employees or former employees of an organization.
For the purpose of addressing the narrower issues raised when the organization is a government body, the Committee does not believe it is necessary to restate the substance of Opinion 69. Nevertheless, it should be noted that Opinion 69 analyzed DR7--104(A) in terms of its five constituent parts: (1) a "communication"; (2) concerning the "subject of the representation"; (3) made to "a party"; (4) who the attorney "knows" to be represented by counsel in the matter; unless (5) the attorney is "authorized by law" to communicate with the party without prior consent.
On its face, Rule 4.2 does not distinguish between governmental and non-governmental organizations. In general, the Rule applies to an attorney's communications with a government organization through its employees and elected and other public officials. [See Ohio S. Ct. Bd. of Comm'rs on Grievances and Discipline, Op. 92--7 (1992); Ass'n of the Bar of the City of N.Y. Comm. on Professional and Judicial Ethics, Formal Op. 1991--4 (1991)]. An attorney's ethical obligations in this regard are not altered when a government employee or official initiates the direct contact with the attorney, as opposed to the converse. Nevertheless, because of the unique issues at stake when the government is a party, there are situations in which ex parte contacts are nonetheless "authorized by law," and, thus, permissible.
This opinion will attempt to define the scope of the "authorized by law" exception in addressing the constitutional rights at issue. This opinion is not intended to be all-encompassing. For example, it does not specifically address...
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