Authorized by Law: Ex Parte Contact With Government Officials Represented by Counsel
| Citation | Vol. 89 No. 6 Pg. 47 |
| Pages | 47 |
| Publication year | 2020 |
July 2020
by J. Nick Badgerow
Background. Generally, lawyers are prohibited from communicating about a matter with persons who are known to be represented by another lawyer in the matter. On the other hand, lawyers, like other citizens, occasionally have a need to speak with individuals employed by federal, state or local governments or government agencies about matters of importance to those citizens. These two principles collide when a lawyer attempts to communicate with a government official without the presence or permission of the government's lawyer.
The purpose of this article is to explore this conflict, reaching the conclusion that the right to redress grievances established in both the United States and Kansas Constitutions usually trumps the government lawyer's right to object to direct, ex parte communication by a lawyer with a government official on policy matters, even if that official happens to be represented by another lawyer in the matter.
Rule 4.2, KRPC.[1] This Rule of Professional Conduct provides:
Transactions with Persons other than Clients: 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.[2]
This rule generally prohibits contact by a lawyer with another lawyer's client about a matter on which the second lawyer represents the client.
Rule 4.2 codifies the no-contact or anticontact rule. If a person is represented in a matter, lawyers for others in the matter may not communicate about it with him directly but must go through his lawyer.[3]
The salutary purpose of this rule is to preserve the attorney-client relationship, and to ensure that one lawyer (with presumed superior knowledge of the law and a likely ulterior motive) does not take advantage of the other (perhaps trusting and unwary) person who has engaged counsel to represent him/her in a matter.[4]
[T]he purpose and the spirit of Rule 4.2 . . . is to prevent lawyers from taking advantage of laypersons and to "preserve the integrity of the lawyer-client relationship." Annotated Model Rules of Professional Conduct 392 (3d. ed.1996).[5]
The purpose of Rule 4.2 is to protect the represented individual "from the supposed imbalance of legal skill and acumen between the lawyer and the party litigant."[6]
Similarly, the Minnesota Supreme Court has observed:
The purpose of Rule 4.2 is to "protect[ ] a person who has chosen to be represented by a lawyer in a matter against possible overreaching by other lawyers who are participating in the matter," including against "interference by those lawyers with the client-lawyer relationship." Minn. R. Prof. Conduct 4.2 cmt. 1.[ ][7] The rule is also intended to "protect[ ] the right of counsel to be present during any communication between the counsel's client and opposing counsel." State v. Miller, 600 N.W2d 457, 464 (Minn. 1999). [W]e have referred to the language of Rule 4.2 as "plain and unambiguous," State v. Clark, 738 N.W.2d 316, 339 (Minn. 2007). . .[8]
This rule is not designed just for the protection of clients.
No attorney wants her client to be discussing matters regarding legal strategy or settlement with another attorney without her being present. Nor does any attorney want her client to discuss with another attorney the merits or demerits of the client's position without being present, since such discussions may affect the client's resolve in prosecuting or defending the litigation or the client's confidence in his attorney. See, e.g., Pratt v. National Railroad Passenger Corporation, 54 F. Supp. 2d 78, 79 (D. Mass. 1999) (Young, J.) ("Historically, [Rule 4.2] is justified by the need to preserve the mediating role of counsel on behalf of their clients and to protect clients by overreaching by counsel for adverse interests"); Rockland Trust Company v. Computer Associates International, Inc., 1999 WL 95722 at *5 (D. Mass. 1999) (Collings, M.J.); Hanntz v. Shiley, Inc., 766 F. Supp. 258, 265 (D.N.J. 1991).[9]
"Knows to be Represented by Another Lawyer." First, the lawyer must "know" the other person to be contacted is represented by another lawyer.
The prohibition on communications with a represented person only applies in circumstances where the lawyer knows that the person is in fact represented in the matter to be discussed. This means that the lawyer has actual knowledge of the fact of the representation; but such actual knowledge may be inferred from the circumstances. See Rule 1.0(g).[10]
Even if the communicating lawyer "knows" that a government generally has counsel, the lawyer must have actual knowledge that the particular government agency being contacted specifically is represented by that counsel or some other lawyer.
In reaching this conclusion, I am relying, in part, upon the commentary and history of Rule 4.2 of the Model Rules of Professional Conduct, a rule that was taken virtually verbatim from DR 7-104 (see, 2 G. Hazard Jr., The Law of Lawyering, § 4.2:101). By their terms, both rules prohibit contact with a represented party where the attorney actually "knows" of a representation. Neither rule expressly forbids such contact, however, where the attorney "reasonably should know" that the witness was represented (see, Model Rule 4.2; DR 7-104[a]).[11]
The mere fact that a lawyer generally represents the government does not make him/her counsel to each and every person employed by the government, in each and every matter.
Corporate counsel's assertion of blanket representation of the corporation and all its corporate employees is bluster. It is inappropriate. First, a unilateral declaration by a corporation's counsel that he or she represents all current and former employees does not make it so. Second, such blanket representation of a corporation and all its current and former employees would in many instances be fraught with impermissible conflicts of interest for the corporate lawyer.[12]
"In the Matter." Second, under Rule 4.2, the person must be known to be represented by another lawyer "in the matter." In fact, the term "matter" is used no less than 16 times in just this one Rule and its Official Comments. Just because a lawyer knows that a government or agency generally has counsel does not mean the lawyer knows that the government or agency is represented by counsel "in the matter."
By prohibiting communication about the subject matter of the representation, the Rule contemplates that the matter is defined and specific, such that the communicating lawyer can be placed on notice of the subject of representation. Thus, if the representation is focused on a given matter, such as one involving past conduct, and the communicating lawyer is aware of this representation, she may not communicate with the represented person absent consent of the representing lawyer. . . .[13]
But even if the communicating lawyer "knows" that the government, agency, or official is represented by another lawyer, even in the specific matter at issue, may the communicating lawyer proceed with the contact?
Direct Party to Party Communication. As an aside, and...
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