CHAPTER 15 PROFESSIONALISM AND ETHICS IN PRACTICING ADMINISTRATIVE LAW
| Jurisdiction | United States |
(2000)
PROFESSIONALISM AND ETHICS IN PRACTICING ADMINISTRATIVE LAW
Avi S. Rocklin
Cortez, Macaulay Bernhardt & Schuetze LLC
Denver, Colorado
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I. EX PARTE COMMUNICATIONS WITH AGENCY PERSONNEL
A. The No-Contact Rule
1. The Prior ABA Rule
2. Proposed Amended Rule 4.2
B. The No-Contact Rule And The Right To Petition The Government
II. ETHICAL LIMITS ON THE RIGHT TO PETITION THE GOVERNMENT
A. Who Is A Represented "Person"?
B. When Does The Attorney "Know" That The Person Is Represented By Counsel?
C. The "Authorized By Law" Exception
D. The Scope of Rule 4.2
1. Case Law
2. Ethics Opinions
a) The ABA Opinion
b) State Bar Association Ethics Opinions
3. American Law Institute
E. Contact Initiated By An Administrative Employee
F. The Range of Administrative Proceedings
III. IMPROPER INFLUENCE ON AGENCY OFFICIALS AND EMPLOYEES
A. Familiarity
B. Truthfulness
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1. Rule 3.9
2. Rule 4.1
3. Rule 3.5
C. The Administrative Procedures Act
D. Government "Gag" Rules
IV. RELATIONSHIP BETWEEN THE NO-CONACT RULE AND THE FREEDOM OF INFORMATION ACT
V. CONCLUSION
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I. EX PARTE COMMUNICATIONS WITH AGENCY PERSONNEL
The Rules of Professional Conduct, with significant exception based upon the right to petition the government, restrict an attorney from contacting government officials when the attorney represents a client in an administrative, civil, or criminal matter in which the agency is involved. The scope of the ethical prohibition on ex parte contacts with government officials is not clearly defined. When contacting an agency on behalf of a client, an attorney should disclose his or her identity to the government employee, disclose the purpose of the contact, and inquire as to whether the employee is represented by counsel regarding the subject matter of the communication. If the propriety of the communication is in doubt, the attorney should contact counsel for the administrative agency and request such counsel's consent prior to the communication.
A. The No-Contact Rule
Rule 4.2 of the American Bar Association ("ABA") Model Rules of Professional Conduct (the "Rule" or "Rule 4.2"), the no-contact rule, ostensibly protects represented administrative agencies from contacts by opposing counsel when counsel for the agency has not consented to the contact. The Rule 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 by law to do so.
The Rule, or a variation thereof, has been adopted by every state.1 In enacting the Rule, state legislatures recognize that "it is unfair for an attorney to circumvent opposing counsel and employ superior skills and legal training to take advantage of the opposing party."2 The Rule contains five distinct parts: (1) a "communication"; (2) concerning the "subject of the representation"; (3) made to a "person"; (4) whom the attorney "knows" to be represented by counsel; unless (5) the opposing counsel has "consented" to the communication or the attorney is "authorized by law" to make the communication.
While the text of the Rule indicates that the prohibition applies equally to all represented persons, the commentary, case law, and bar association opinions reveal that the proper application of the Rule is dependent upon the context in which the communication is made.3 In the traditional context of legal representation of private
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parties, the Rule clearly prohibits an attorney from contacting a person represented by counsel. In the corporate context, wherein an attorney seeks to contact corporate employees when the corporation is represented by counsel, an attorney may make ex parte contacts with employees who are not "managerial employees."4 However, in the administrative context, the issue is complicated by the fundamental constitutional right to petition the government for the redress of grievances and the public policy of ensuring a citizen's right of access to the government. The "authorized by law" exception effectively ensures that the Rule's prohibition on contacting government employees does not contravene those rights. Courts, the ABA, state bar associations, and the American Law Institute differ on the application of the Rule in the administrative context. Attorneys should familiarize themselves with the interpretations of the Rule that exist in the jurisdiction in which they are practicing and exercise due care when contacting a governmental agency on behalf of a client.
1. The Prior ABA Rule
Model Rule 4.2 is substantially identical to the prior ABA Model Code of Professional Responsibility Disciplinary Rule 7-104(A)(1). DR 7-104(A)(1) used the term "party" where Rule 4.2 uses the term "person." The change establishes that the Rule is not limited to the adjudicative context. In fact, the commentary to Rule 4.2 provides that its ambit includes: "any person, whether or not a party to a formal adjudicative proceeding, contract, or negotiation, who is represented by counsel concerning the matter to which the communication relates." 5 The Rule is thus applicable to any contact with an administrative agency, including contacts regarding licensing and permitting.
2. Proposed Amended Rule 4.2
The ABA Ethics 2000 Commission is reviewing the Model Rules and recommending that the ABA Standing Committee on Ethics and Professional Responsibility adopt changes. 6 The Commission has proposed a modest change to Rule 4.2, but has proposed significant changes to the Rule's comments. The proposed amended Rule 4.2 reads as follows:
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.
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The specific reference to a court order is intended "to alert lawyers to the availability of judicial relief in the rare situations in which it is needed."7 Proposed changes to the comments shall be discussed below in the context in which they arise.
B. The No-Contact Rule And The Right To Petition The Government
A strict interpretation of Rule 4.2's prohibition against contacting government employees conflicts with a person's right to access the government. A person has a fundamental right to petition the government for the redress of grievances under the First Amendment and respective state constitutions. While there is little case law concerning the right to petition the government, the freedom is protected by the Bill of Rights and the Supreme Court has refused to limit it.8
In contrast to a person's right to access the government, the government has the right to be represented by counsel. Attorneys should not be permitted to contact uncounselled government officials who may not know what cases are pending against the agency, the nature and status of those cases, or the impact the official's statement may have on the case.9 The policy in support of prohibiting an attorney from contacting a government official includes "preventing a lawyer from taking unfair advantage of a represented party by application of the lawyer's superior knowledge and skill, avoiding disputes regarding conversations that could force a lawyer to become a witness, protecting a client from making inadvertent disclosures of privileged information, channeling disputes through dispassionate experts, and preventing overreaching of an unprotected party.... Direct communication by opposing counsel with a represented party usually would be made only for the purpose of bypassing the party's counsel in hopes of obtaining an advantage or opportunity not otherwise available. Those concerns clearly apply in the context of a presentation to a government agency."10
An administrative agency, like an individual or corporate entity, has the right to legal representation. Courts and bar associations have struggled to balance the citizen's right to petition the government with the government's right to be represented by counsel.
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II. ETHICAL LIMITS ON THE RIGHT TO PETITION THE GOVERNMENT
Rule 4.2 imposes ethical limits on an attorney's right to contact government employees and may thus infringe upon on the client's right to petition the government. Unless an attorney has obtained consent from government counsel or is "authorized by law" to make the communication, the Rule prevents an attorney from making a "communication" concerning the "subject of the representation" to a represented "person" whom the attorney "knows" is represented by counsel.
A. Who Is A Represented "Person"?
In considering the applicability of Rule 4.2, an attorney must first determine whether the government employee to be contacted is a represented "person" under the Rule. If the employee is not a represented person, Rule 4.2 does not prohibit the contact. The comment to Rule 4.2 provides that:
In the case of an organization, this Rule prohibits communications by a lawyer for another person or entity concerning the matter in representation with persons having a managerial responsibility on behalf of the organization, and with any other person whose act or omission in connection with that matter may be imputed to the organization for purposes of civil or criminal liability or whose statement may constitute an admission on the part of the organization.11
Pursuant to the comment, a government employee is a "party" if: (1) the employee has managerial responsibility;12 (2) the employee's acts or omissions in the context of the disputed matter are imputable to the government for purposes of assessing liability; or (3) the...
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