Ethics Opinion 280

Direct Communications Between a Lawyer Representing a Client and Members of a Local Government Board

Under Rule 4.2(d), a lawyer who represents a client before a D.C. professional licensing board can properly contact individual board members to discuss the board's action against the lawyer's client. The lawyer also can discuss the board member's alleged dissatisfaction with the board staff and internal operations as they affect the lawyer's client.

Applicable Rule

•     Rule 4.2(d) (Communication By Lawyer With Government Officials)

Inquiry

The inquirer, a private practitioner, requests an opinion addressing whether, under Rule 4.2(d), an attorney may communicate directly with government officials on a licensing board without first obtaining consent of the board's lawyer. The inquirer represents a client who reached an unsatisfactory consent order with a D.C. health professional licensing board concerning the client's chiropractic license. The inquirer believes that the administrative and legal staff assigned to support the licensing board both determined the outcome and acted improperly in his client's case. In addition, it is his understanding that many members of the licensing board are unhappy about the staff imposing its will on the board with respect to a number of matters. Consequently, the inquirer is interested in contacting the individual board members to discuss two topics: (1) his client's consent order; and (2) board member's alleged dissatisfaction with the board staff and with other internal operational matters affecting both his client and other clients' matters. Rule 4.2 generally prohibits contact between an attorney and opposing parties, unless the attorney has the prior consent of the lawyer representing the opposing party or is authorized by law to make contact. Paragraph (d) of Rule 4.2, however, provides that the Rule "does not prohibit communication by a lawyer with government officials who have the authority to redress the grievances of the lawyer's client, whether or not those grievances or the lawyer's communications relate to matters that are the subject of the representation, provided that in the event of such communications the disclosures specified in (b) are made to the government official when the communication is made.¹ The inquiry requires that we define the scope of this section.

Discussion

Rule 4.2(d) authorizes a broad range of substantive communications between a lawyer for a private party and government officials. Based on the legislative history and Comment [7] to Rule 4.2[d], we conclude that neither of the communications proposed would violate Rule 4.2.

In enacting Rule 4.2, the Board of Governors of the District of Columbia Bar concluded that ABA Model Rule 4.2 should be amended to exclude entirely communications between attorneys and governmental officials from the "no contact" rule.² The drafters recognized that contacts with governmental parties should be treated differently from contacts with non-governmental parties. Consistent with D.C. Bar Op. No. 80, the drafters rationalized that many considerations different from those found in private litigation apply where the government is the opposing party.³

For example, Rule 4.2 has at its core the societal concern that lawyers are better positioned, by education and training, to overwhelm the lay person and exploit his or her lack of legal knowledge in the course of communicating directly with the lay party. Such a concern is not fully applicable in the governmental context because government officials generally are presumed to be sufficiently capable of resisting legal or policy arguments that are not proper and genuinely persuasive. Moreover, government officials, by virtue of their experience and expertise, should be competent to decide whether to engage in such discussions with opposing counsel without seeking legal advice or having a lawyer present.

The drafters also recognized that in litigation involving a governmental party, the authority to make decisions is not, like private litigation, entirely that of the client; rather, decisions may be shared by the government and counsel, and in some instances may rest solely with counsel. Under such circumstances, responsible government officials may not know of positions taken by government counsel. Prohibiting direct communications with the governmental party, therefore, may hinder rather than advance the goal of client control of the proceedings.

Another difference between private and governmental parties noted by the drafters is that the government represents the public. Therefore, the public interest is not just that the government win a case but that the government advance the public interest. Permitting direct communication with government officials - ''those who are best versed in the competing policy considerations and most experienced in analyzing, choosing among, and reconciling" a variety of public interests - facilitates such a result. Yellow Cover Legislative History at 188.

In addition to the different considerations applicable to governmental parties, the drafters of Rule 4.2 acknowledged that prohibitions on contacting government officials may infringe upon the freedom to petition the government for redress of grievances guaranteed by the First Amendment. Id At 188-189. First Amendment concerns recently led the ABA Ethics Committee recently to alter its position and issue an opinion under Model Rule 4.2 (which does not contain an explicit exception for government contacts) that permits a lawyer representing a private party in a controversy with the government to communicate about the matter with government officials who have authority to take or to recommend action in the matter, provided that the sole purpose of the lawyer's communication is to address a policy issue ...."

ABA Formal Opinion 97-408 (8/2/97).⁴

Comment [7] our Rule 4.2, however, indicates that the right of a private party's attorney to communicate directly with government officials is not absolute. The commentary notes: “[p]aragraph (d) does not permit a lawyer to bypass counsel representing the government on every issue that may arise in the course of disputes with the government." The comment further clarifies that the rule "is not intended to provide direct access on routine disputes such as ordinary discovery disputes, extensions of time or other scheduling matters, or similar routine aspects of the resolution of disputes." The examples provided by Comment [7] indicate that the drafters excluded only communications about procedural matters from the range of direct contact permitted with government officials, presumably to allow government counsel full control over the day-to-day conduct of litigation without preventing substantive communications between the public and government officials.⁵

In the instant situation, both types of communications proposed by the inquirer appear to fall within the scope of permissible communications under paragraph (d). Indeed, contact with members of the licensing board about the conclusion reached in a particular matter as well as the alleged improper conduct of governmental personnel, i.e., the board's counsel and staff, is directly addressed by the commentary to paragraph (d). Specifically, comment [7] to the Rule explains that paragraph (d):

is intended to provide lawyers access to decision makers in government with respect to genuine grievances, such as to present the view that the government's basic policy position with respect to a dispute is faulty, or that government personnel are conducting themselves improperly with respect to aspects of the dispute.

We therefore conclude that the proposed communications are consistent with the broad scope of direct communications with adverse government officials permitted by Rule 4.2(d).

Inquiry No. 97-9-43
Adopted: March 18, 1998

1. Rule 4.2(b) allows an attorney to contact lower­level employees of an adverse organizational party without the consent of the organization's attorney. The rule requires that a lawyer disclose his or her identity and identify his or her adversary position against the employee's organization prior to communicating with any nonparty employee of the opposing party.
2. The explicit governmental exception to Rule 4.2 departs significantly from the predecessor provision DC 7-104(A)(1), see Opinion No. 80 (restricting access to government officials under DR 7-104(A)(1)), and the rules of most state bars. California is the only other jurisdiction that provides a specific exception to the no-contact rule for governmental parties, see California Rules of Professional Conduct 7-103, although a number of jurisdictions have interpreted their rules barring contacts between a lawyer and an opposing party to allow some contacts with adverse government officials so as not to infringe the First Amendment right to petition the government for redress of grievances. See generally A.B.A. Opinion No. 97-408 (1997) at n. 7.
3. See Proposed Rules of Professional Conduct and Related Comments, Showing the Language Proposed by the American Bar Association, Changed Recommended by the District of Columbia Model Rules of Professional Conduct Committee, and Changes Recommended by the Board of Governors of the District of Columbia Bar, Nov. 19, 1986 ("Yellow Cover Legislative History"), at 186-188.
4. The ABA' s opinion requires that the lawyer give government counsel “reasonable advance notice of an intent to communicate,” a restriction that we do not adopt. We specifically do not intend this opinion to address whether and to what extent our Rule 4.2 prohibits government counsel from approaching represented individuals. See Cmt. [8] to D.C. Rule 4.2.
5. We note D.C. Rule 3.S(b) provides that lawyers are prohibited from communicating ex parte with judges, jurors, prospective jurors or other officials "except as permitted by law," reiterating that under our Rules applicable prohibitions on ex parte contacts must be observed. See generally Rule I 06(b) of the Rules of the United States District Court for the District of Columbia (prohibiting letters directly to court unless so directed by a judge). We are unaware of any such rules applicable to the situation considered in this opinion.