Formal Opinion 93: Ex Parte Contacts With Government Officials, Adopted October 16, 1993, Amended February 2016
| Publication year | 2016 |
| Pages | 19 |
In and Around the Bar
CBA Ethics Committee
Formal Opinion 93: Ex Parte Contacts with Government Officials, Adopted October 16, 1993, Amended February 2016
Introduction and Scope
The Ethics Committee of the Colorado Bar Association (Committee) has received inquiries concerning the scope of the ethical prohibition on ex parte contacts with a government organization 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 its Formal Opinion 69, "Propriety of Communicating With Employee of an Adverse Party Organization" (1987, Addendum issued 1995, Revised 2010) (Opinion 69). This opinion supplements Opinion 69 and provides more particular guidance with respect to contacts with government organizations under Rule 4.2 of the Colorado Rules of Professional Conduct (Colo. RPC or the Rules). Because there is a relative dearth of case law on this subject, the Committee has analyzed and relied upon ethics 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.
Syllabus
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 an employee or official who is not "a constituent of the organization who supervises, directs or regularly consults with the organization's lawyer concerning the matter," or who does not have "authority to obligate the organization with respect to that matter." See Colo. RPC 4.2, cmt. [7]. The individuals who may be contacted despite representation of the organization are sometimes incorrectly referred to as "bystander witnesses." Opinion 69 provides greater detail on this distinction, but in general the lawyer may not contact those who, with respect to the subject matter of the representation, have the authority to commit the government organization to a position, 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 whose 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 would otherwise fall under Rule 4.2, 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.
Analysis
The ethical principle at issue is codified in Rule 4.2, which provides as follows:
Rule 4.2—Communication with Person Represented by Counsel.
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.
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 the issue in terms of Rule 4.2's four constituent parts: (1) a "communication"; (2) concerning the "subject of the representation"; (3) made to a person whom the attorney "knows" to be "represented" by counsel in the matter; unless (4) the attorney is "authorized by law or by court order" to communicate with the person without prior consent.
On its face, Rule 4.2 does not distinguish between governmental and nongovernmental organizations, although several of the comments draw some distinction. In general, Rule 4.2 applies to an attorney's communications with a government organization through its employees and elected and other public officials. See ABA Formal Op. 97-408, "Communication with Government Agency Represented by Counsel" (1997) (ABA Op. 97-408) (discussing whether a lawyer representing a private party may communicate about the matter with responsible government officials without prior consent from government counsel); Conn. Bar Ass'n Prof'l Ethics Comm., Informal Op. 01-17, "Application of No Contact Rule to Government Officials and Agencies" (2001) (Rule 4.2 permits contact with a represented party if authorized by law, and a comment recognizes that communications authorized by law include the right to speak with government officials about a matter); N.C. State Bar, 2005 Formal Ethics Op. 5, "Communication With Government Entity Represented by Counsel" (2006) (exploring the extent to which a lawyer may communicate with employees or officials of a represented government entity); Ohio S. Ct. Bd. of Comm'rs on Grievances and Discipline, Op. 92-7 (1992); Utah State Bar Ethics Advisory Op. Comm. Op. 115R (1994); Ass'n of the Bar of the City of N.Y. Comm. on Prof'l & Jud. Ethics, Formal Op. 1991-4 (1991) (NYSBA Op. 1991-4). An attorney's ethical obligations in this regard are not altered when a government employee or official initiates the direct contact with the attorney. Nevertheless, because of the unique issues at stake when the government is a party, in some situations ex parte contacts are nonetheless "authorized by law," and, thus, permissible.
This opinion attempts to define the scope of the "authorized by law" exception in addressing the constitutional rights at issue, but it is not intended to be all encompassing. For example, the Committee does not specifically address the ethical issues involved when a prosecuting attorney attempts to make ex parte contact with a criminal defendant. Nor has the Committee attempted to list or discuss specific federal, state, or local laws, rules, or regulations that may specifically authorize direct contact between an attorney and a government employee or official. The Committee believes that a narrower reading of the...
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