VIII. Lawyers' Ex Parte Communications with Government Agencies

• Library: Professional Responsibility in Litigation (ABA) (2016 Ed.)

VIII. Lawyers' Ex Parte Communications with Government Agencies

Finally, we come to the subject of lawyers' ex parte communications with government agencies.⁴⁰² Let's start our discussion by studying a case arising out of a California wildfire. A blaze known as the Moonlight Fire ignited on Labor Day 2007 and consumed over 46,000 acres of land in the Plumas and Lassen National Forests. The United States government sued Sierra Pacific Industries, Inc., alleging that the fire resulted from logging operations by Sierra Pacific and its contractor.

Against this backdrop, in August 2010, the U.S. Forest Service initiated public tours of a Forest Service project in the Plumas National Forest.⁴⁰³ Michael Schaps, an associate with the law firm defending Sierra Pacific, attended one of the Forest Service tours. During the tour, he questioned Forest Service employees about fuel breaks, fire severity, and contractual provisions required by the Forest Service for fire prevention in timber sale projects. He asked for the employees' opinions in response to hypothetical questions on these topics, and allegedly used his iPhone to record parts of the discussions. Schaps never disclosed to the government employees his interest or participation in the pending litigation. He knew that the Forest Service had counsel in the lawsuit, and that he lacked their consent to the communications.

Upon discovering Schaps's activities, the government filed a motion seeking a protective order to bar improper ex parte contacts with federal employees, require Sierra Pacific to produce all evidence obtained through its ex parte contacts, and prohibit Sierra Pacific's use of any such evidence at trial. Sierra Pacific responded that Schaps's participation in the tour, including his conversations with Forest Service employees, was protected by the First Amendment right to petition the government for a redress of grievances.⁴⁰⁴

The district court agreed with the presiding magistrate that Schaps's conduct was not protected by the First Amendment.⁴⁰⁵ While he had the right to join the tour, his conversations with the Forest Service employees were a separate matter.⁴⁰⁶ He clearly had attempted to gather evidence for use in Sierra Pacific's case. The fact that the Forest Service employees were not decision-making officials and lacked authority to influence policy or grant some request for redress only bolstered the court's conclusion.⁴⁰⁷ The court ordered Sierra Pacific to produce all recordings and documents concerning Schaps's ex parte conversations and prohibited Sierra Pacific from using all such information in the litigation.⁴⁰⁸

The Moonlight Fire controversy is a vivid reminder that lawyers must carefully navigate ex parte communications with government agencies and their employees. But not all cases seem so clear-cut. Indeed, this is an ethical landscape that in many respects lacks clear definition.

A. The Model Rule 4.2 Authorized by Law Exception

Model Rule 4.2 does not expressly permit ex parte communications with government officials; rather, it implies an exception to the general prohibition on ex parte communications with represented parties where a lawyer "is authorized to do so by law."⁴⁰⁹Comment 5 to Model Rule 4.2 offers as an example those communications "by a lawyer on behalf of a client who is exercising a constitutional or other legal right to communicate with the government."⁴¹⁰ Before the 2002 amendments to the Model Rules, comment 1 to Model Rule 4.2 explained that "[c]ommunications authorized by law include, for example, the right of a party to a controversy with a government agency to speak with government officials about the matter."⁴¹¹ Most states that have adopted Model Rule 4.2 employ one of these two comments. Unfortunately, the precise reach of the authorized by law exception, and, more specifically, a government contacts exemption, remains unanswered by Model Rule 4.2's text or comments.

B. ABA Formal Opinions 95-396 and 97-408

As an analytical starting point, ABA Formal Opinion 95-396 clarifies that the "authorized by law" exception to Model Rule 4.2 is satisfied by "a constitutional provision, statute or court rule, having the force and effect of law" which "expressly allows a particular communication to occur in the absence of counsel."⁴¹² Emphasizing the "force and effect of law" condition, the opinion cautions that directives by a government department or agency seemingly permitting ex parte communications with represented parties fall within the "authorized by law" exception only "when embodied in formal regulations that have been properly promulgated pursuant to statutory authority that contemplates regulation of the character in question."⁴¹³ In fact, this approach to the authorized by law exception principally serves to prevent a governmental body from empowering its own lawyers to engage in otherwise unlawful ex parte communications simply by promulgating a regulation or policy.⁴¹⁴

Open government laws and whistle-blower statutes are fertile grounds for the "authorized by law" exception.⁴¹⁵ Statutes, administrative regulations, and court rules rooted in procedural due process requirements are also a common place to find ex parte communications that are "authorized by law." For example, a lawyer may cause a person to serve a subpoena or other process directly on a represented opposing party because the governing law or court rule requires such service.⁴¹⁶ Last, but certainly not least, most authorities look to the First Amendment's petition for redress of grievances clause (the Petition Clause) as the foundation for government contacts exceptions to the no-contact rule.⁴¹⁷ The Petition Clause protects an individual's right to appeal to government-established forums for the resolution of legal disputes.⁴¹⁸ This right extends to all departments of the government, including the courts, administrative agencies, and cities and their legislative bodies.⁴¹⁹

Like the other First Amendment guarantees, the Petition Clause is "an assurance of a particular freedom of expression."⁴²⁰ In a representative democracy, "effective representation depends to a large extent upon the ability of the people to make their wishes known to governmental officials acting on their behalf."⁴²¹ Indeed, the Model Rule 4.2 prohibition on ex parte communications with represented parties is ostensibly at odds with citizens' constitutional right to access to their government.⁴²²

In Formal Opinion 97-408, the ABA's Standing Committee on Ethics and Professional Responsibility acknowledged that the Petition Clause and the derivative public policy of ensuring the right of access to government decision makers are important exceptions to the prohibition on ex parte communications.⁴²³ The committee thus defined the scope of ex parte communications with government officials that are authorized by law because the communication itself triggers the exercise of the citizen's constitutional right to petition the government. According to Formal Op. 97-408, an ex parte communication with a government official must satisfy three conditions to pass muster under Model Rule 4.2: first, the sole purpose of the communication must be to address a policy issue; second, the government official must have the authority to take or recommend action in the matter; and third, the lawyer representing the private party must give the government's lawyer reasonable advance notice of her intent to communicate with the official.⁴²⁴ Other authorities have embraced and elaborated on these conditions.⁴²⁵ Because most jurisdictions follow Model Rule 4.2 and at least one state bar has recognized ABA Formal Op. 97-408 as the "seminal authority on a lawyer's right to communicate directly with government officials,"⁴²⁶ the three elements of the ABA's government contacts exception warrant further attention.

1. The Purpose of the Communication with the Government Official

Courts and state ethics committees have routinely permitted lawyers to ask government officials about the rationales behind their policy positions, or to lobby government officials for the passage of a law, statute, or regulation favorable to their clients.⁴²⁷ In fact, the ability to communicate with government officials concerning the wisdom or error of their policy proposals falls squarely within the Petition Clause's scope.⁴²⁸

For instance, the State Bar of South Dakota Ethics Committee held that under Rule 4.2, a lawyer representing the board of a municipality may lobby the city council, mayor, and other city entities and officials to pass an ordinance modifying the board's power and authority without the city attorney's permission.⁴²⁹ The committee reasoned that efforts to obtain a legislative change favoring a client do not violate Rule 4.2 because they relate "solely to government officials acting on a legislative question rather than in an adjudicative or negotiation capacity."⁴³⁰ In North Carolina, some plaintiffs' lawyers successfully obtained a sign variance for their clients from a town board of adjustment and the town appealed. The North Carolina State Bar advised the lawyers that they could write the elected members of the town council to ask them to place the desirability of the pending appeal on the agenda for the next town council public meeting.⁴³¹

In something of a mixed bag for First Amendment champions, the Illinois State Bar Association concluded that Rule 4.2 prohibited a lawyer from communicating with represented city officials concerning a municipal zoning ordinance violation proceeding against the lawyer's client.⁴³² But the ISBA further emphasized that this prohibition did not extend to the lawyer's communications with municipal zoning and building officials about the client's related zoning review application. The ISBA reasoned that the lawyer's efforts to secure a zoning change implicated the client's right to petition public officials for redress of a grievance.⁴³³

At the opposite end of the...