Ethics Opinion 274

Government Agency Attorneys May Participate in a Public Meeting at Which Claimants Who Are Represented by Counsel Are Present

A government agency has a practice of conducting public meetings for people who have claims under the agency’s program. The purpose of these meetings is to explain the program, explain agency policies, and respond to questions.

A lawyer who represents a group of claimants cannot prevent the agency from conducting the meeting on the ground that the meeting constitutes an unauthorized contact by the agency’s counsel with represented parties under Rule 4.2(a). This is true regardless of the fact that the agency’s lawyers may attend, and even participate in, the meeting.

Applicable Rule

• Rule 4.2(a) (Communication Between Lawyer and Opposing Parties)

Inquiry

The Pension Benefit Guaranty Corporation (“PBGC”) is a corporation owned by the United States Government and established pursuant to the Employee Retirement Income Security Act of 1974 (“ERISA”), 29 U.S.C. § 1302. PBGC administers, among other things, a pension plan termination insurance program. When an under-funded pension plan terminates, PBGC is generally appointed as a statutory trustee of the plan. As trustee, PBGC has powers analogous to those of a trustee under Section 704 of the Bankruptcy Code, 11 U.S.C. §704, and PBGC is responsible for paying benefits under the plan in accordance with requirements of Title IV of ERISA. 29 U.S.C. § 1342(d)(3).

In the circumstances giving rise to this inquiry, PBGC was appointed to be trustee of a Colorado-based plan having approximately 4300 participants at the time of its termination. Pursuant to the agency’s established practice, PBGC sent a notice to the known plan participants inviting them to attend a meeting convened by PBGC.

The purpose of the meeting was to provide general information about the PBGC insurance system, to describe the general limitations of the ERISA guarantee, and to answer questions. At meetings of this type, PBGC employees discuss the procedures for filing claims, the nature and extent of these types of benefits that are guaranteed by PBGC, and the agency’s policies and procedures for handling claims. The meetings are thought to be an efficient method of disseminating information to claimants and of answering recurrent questions that claimants tend to raise with the agency.

Before the time of the meeting, 300 of the plan beneficiaries retained counsel to assist them in obtaining payment of certain specific claims. PBGC had responsibility for determining in the first instance whether the beneficiary’s claims would be paid.

The attorney representing 300 of the beneficiary/claimants wrote to PBGC and demanded that the agency not hold the meeting. Counsel asserted that the proposed meeting was an attempt to side-step or undermine her representation of her 300 claimant clients in violation of Rule 4.2(a). Counsel demanded that PBGC deal directly and exclusively with her with regard to the claims of her clients.

PBGC meetings of this type are conducted by a non-lawyer employee of PBGC. However, a PBGC staff attorney attends the meeting for the purpose of providing advice to the non-lawyer concerning the conduct of the meeting. The staff attorney typically does not address the meeting, although it is possible that if a question beyond the legal competence of the non-lawyer PBGC employee who is conducting the meeting were asked, the PBGC staff attorney might give part or all of the response to the question.

The Inquirer, a staff attorney for PBGC, has requested the Committee’s opinion on the application of Rule 4.2(a) to the circumstances described above. Specifically, the Inquirer asks whether: (1) PBGC was obliged to cancel the meeting in response to counsel’s demand; (2) PBGC was required to direct its attorneys not to attend the meeting; and (3)PBGC should invite or direct counsel’s 300 beneficiary/claimant clients to leave the meeting.

The Inquirer has also requested the Committee’s opinion on the application of Rule 4.2(a) to PBGC’s practice of using contractors to perform administerial functions for PBGC. These contractors operate as “field benefit administrators” in locations where PBGC does not have employee representatives. The contractors work under the supervision of non-lawyer employees of PBGC and provide most of the front-line services to plan participants. For example, such services may include collecting of plan records, applications, and personal data from claimants and explaining plan provisions and PBGC guarantee limitations. In this capacity, the contractors receive numerous telephone inquiries and office visits from participants who may, or may not, be represented by counsel.

Discussion

Rule 4.2(a) provides that:

During the course of representing a client, a lawyer shall not communicate, or cause another to communicate, about the subject of the representation with a party known to be represented by a another lawyer in the matter, unless the lawyer has the prior consent of the lawyer representing such party or is authorized by law to do so.

It is first worth noting the purpose of the rule at issue here. Rule 4.2(a) is designed to prevent a lawyer from communicating directly with opposing counsel’s client. Among its main purposes is the protection of the adversary system. A client who receives a communication from opposing counsel without the participation of his own counsel may not be able to evaluate the correctness of statements of law made by opposing counsel. Without the participation of his lawyer, an unprotected client may be induced by opposing counsel into making admissions, waiving confidentiality, or taking positions detrimental to the client’s interest without the client’s realizing it because the client’s lawyer is not aware of, and not participating in, the communication. See D.C. Bar Op. 258 (1995), particularly text at nn. 5-10. Rule 4.2(a) is, by its very terms, waivable by counsel (and only by counsel) in the sense that, in appropriate circumstances, a lawyer can authorize opposing counsel to contact his client without the lawyer’s participation.

There are a number of reasons why the Committee believes that Rule 4.2(a) does not prevent PBGC’s conduct at issue in this inquiry. In the first place, the meetings that are described by Inquirer are initiated by PBGC itself as part of its functions as trustee, and the attendance of the PBGC’s staff attorney is incidental. There is no indication that PBGC’s staff attorneys are using non-lawyer employees of the agency to accomplish indirectly anything that the staff attorneys would themselves be prevented by Rule 4.2(a) from accomplishing directly.

The rule does not by definition apply to non-lawyers and therefore by extension does not apply to the clients of lawyers unless there is some indication - not present here -that lawyers are using non-lawyers to circumvent the rules. To the extent that PBGC is the client of its in-house lawyers in this situation, the ethics rules for lawyers would not prevent the non-lawyer employees of the agency from conducting meetings of this type.

The inquiry, seen in this light, resolves into a question of whether the non-lawyer employees of PBGC who conduct these meetings can be accompanied to the meetings by the agency’s counsel when some (but probably not all) members of the audience may be represented by counsel. We discern no valid reason why PBGC’s non-lawyer employees should be deprived of the advice of the agency’s counsel in these circumstances.

Finally, when the lawyer representing the claimants is aware in advance of the meeting—which she undoubtedly was in this case—the lawyer representing the claimants has a number of choices: she can consent to her clients’ attendance at the meeting; she can attend the meeting with her clients; or she can counsel her clients not to attend. The lawyer for the claimants, however, seeks to convert a prophylactic rule, which prevents unconsented contact with her clients by opposing counsel, into an offensive weapon by which the lawyer can prevent PBGC from conducting its public meeting.

PBGC does not discuss the facts and circumstances of individual claimants at such meetings. Rather, as we understand it, the purpose of these meetings is to give general information concerning the outlines of the agency’s program and the types of benefits that the agency guarantees and to answer general questions along these lines. The rules of ethics for lawyers should not interfere with the right of non-lawyer employees and staff attorneys for a government agency from communicating this kind of useful information to the interested public absent a very clear reason to do so.

It may be possible to imagine circumstances in which a question from the floor was so specifically idiosyncratic to the questioner in a particular case where the agency staff attorney knows that the questioner is represented by counsel, that prudence would dictate deferring a response to such a question to the ordinary course of the claims adjudication process.

However, so long as the focus of the meeting remains on the provision of general information to the interested public, nothing in Rule 4.2(a) impinges on the conduct of non-lawyer employees of the agency, and lawyer employees of the agency can participate in the process unless they know that they are being drawn into a discussion of an individualized subject as to which a potential claimant is represented by counsel.

As to the second branch of the inquiry concerning the field benefit administrators, these contractors are, by definition, not lawyers, and therefore nothing in Rule 4.2(a) impinges on their conduct. Only in a circumstance where an agency attorney sought to communicate with a represented client through the intermediary of a field benefit administrator with the purpose of circumventing the claimant’s attorney would Rule 4.2(a) come into effect. However, on the facts of the inquiry presented to us, there is no indication that such conduct is present here.

Inquiry No. 94-8-33
Adopted: September 17, 1997