Chapter 3 Communication with a Government Agency ... · Chapter 3 Communication with a Government...

Chapter 3Communication with a Government Agency

Represented By Counsel:Where Does the Ethical Boundary Fall?

By Laura E. BeverageKaren L. JohnstonJackson Kelly PLLCDenver, Colorado

Synopsis

§ 3.01. Introduction ............................................................................. 50§ 3.02. When May an Attorney Have Contact with a Represented

Government Agency? .............................................................. 51[1] — American Bar Association Model Rule 4.2 ................... 51[2] — Analogous No-Contact Rules of Selected States ........... 52

[a] — Other Jurisdictions and the No-Contact Rule ...... 54[3] — Restatement (Third) of Law Governing Lawyers .......... 55

§ 3.03. To Contact or Not to Contact (and Under WhatCircumstances)—That Is the Question ................................. 55[1] — When Does the No-Contact Rule Apply in

General? .......................................................................... 55[2] — ABA Formal Opinion 97-408: Communication

with Government Agency Represented by Counsel ...... 57[3] — A Survey of Selected State Ethics Opinions .................. 58

[a] — Colorado Bar Association Formal Opinion 93:Ex Parte Contacts with Government Officials(1993) ................................................................... 58

[b] — Opinion of the Kentucky Bar AssociationE-332 (1988) ........................................................ 59

[c] — Supreme Court of Ohio, Board of Commissionerson Grievances and Discipline, Opinion 92-7 ...... 60

[d] — Restatement (Third) of Law Governing Lawyersand Modern Legal Ethics ..................................... 63

§ 3.04. Applying the No-Contact Rule to the Real World ............... 63[1] — Application of the No-Contact Rule During

a Rulemaking Adjudication ............................................ 64[2] — Application of the No-Contact Rule During

an Enforcement Adjudication ........................................ 66

CITE AS25 Energy & Min. L. Inst. ch. 3 (2005)

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[3] — Application of the No-Contact Rule Duringa Subsequent Investigation ............................................. 70

[4] — Application of the No-Contact Rule to Contactof a Former Government Employee ............................... 71

§ 3.05. Selected Decisions Addressing Consequencesof Violating the No-Contact Rule .......................................... 74[1] — New York Code of Professional Responsibility,

DR 7-104(A)(1) .............................................................. 74 [2] — Connecticut Rules of Professional Conduct,

Rule 4.2 ........................................................................... 76§ 3.06. Conclusion. ............................................................................... 77

In general, a lawyer is entirely barred from any representationalcontact with a person represented by another lawyer. . . . Theprohibition is founded upon the possibility of treachery that mightresult if a lawyer were free to exploit the presumedly vulnerableposition of a represented but unadvised party.1

§ 3.01. Introduction.This chapter analyzes the circumstances under which a lawyer

representing a private party in a controversy with a government agencymay contact the government agency directly on the subject matter of thecontroversy, knowing that the government is represented by counsel (i.e.,the “no-contact rule”). In addition to analyzing the issue under ModelRule 4.2, the Rules of Professional Conduct for other jurisdictions will beconsidered.2 Moreover, to the extent other jurisdictions have case lawaddressing the no-contact rule that is helpful in analyzing the issues, thoseopinions will also be discussed. Finally, the Restatement (Third) of LawGoverning Lawyers will be reviewed.

1 Charles W. Wolfram, Modern Legal Ethics § 11.6.2 (West Group Publishing 1986).2 Pursuant to Model Rule 8.5, a lawyer admitted to practice in a jurisdiction is subjectto the disciplinary authority of that jurisdiction, regardless of where the lawyer’s conductoccurs. However, Rule 8.5 has a Choice of Law provision addressing the situation inwhich the conduct may occur in a jurisdiction other than that where the lawyer is admittedto practice. State and local ethics committees, case law, or other authority may imposedifferent standards than those discussed herein and must be consulted.

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COMMUNICATION WITH A GOVERNMENT AGENCY

Typically, issues relating to the no-contact rule arise in the context oflitigation between private parties. The application of the no-contact ruleto contact with a represented government agency raises issues unique tothat context: the fundamental constitutional rights to free speech and topetition the government for the redress of grievances may conflict withthe general rule prohibiting ex parte contact. Consequently, a balancingof interests must be undertaken, which results in the application of therule being somewhat ill-defined in this specific context of attorneycommunications. Thus, the application of the no-contact rule is bestanalyzed within a factual framework. Thus, the ethical propriety ofcommunications with a represented government agency is explored withinthe context of various factual circumstances within this chapter.

§ 3.02. When May an Attorney Have Contact with aRepresented Government Agency?

[1] — American Bar Association Model Rule 4.2.In general, the American Bar Association (ABA) Model Rule 4.23

protects represented government entities from unconsented contact byopposing counsel. Model Rule 4.2 prohibits a lawyer from communicatingabout the subject of the representation with a person the lawyer knows tobe represented in the matter, without the consent of opposing counsel orunless authorized by law to do so.

The text of Model Rule 4.2 (2002) applies its prohibition equally toall represented persons, including both private and public organizationalentities. Model Rule 4.2 states:

In representing a client, a lawyer shall not communicate aboutthe subject of the representation with a person the lawyer knowsto be represented by another lawyer in the matter, unless the lawyerhas the consent of the other lawyer or is authorized to do so bylaw or a court order.4

3 Amended February 5, 2002, American Bar Association House of Delegates,Philadelphia, Pennsylvania, per Report No. 401. The only substantive change in thelanguage of the rule was the addition of “or a court order.” The comments, however,

changed significantly.4 Model Rules of Professional Conduct, R. 4.2 (2002).

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The commentary to Model Rule 4.2 (2002) alludes to a somewhatbroader exception to the rule, based on the constitutional right to petitionand other legal rights. Comment [5] to the Model Rule notes that“communications authorized by law may include communications by alawyer on behalf of a client who is exercising a constitutional or otherlegal right to communicate with the government.”5

The commentary to Model Rule 4.2 (1995), however, appeared tocontemplate an even broader exception to the rule, based on theconstitutional right to petition as well as the derivative public policy ofensuring a citizen’s right of access to government decision makers.Comment [1] to Model Rule 4.2 (1995) noted, “communicationsauthorized by law include, for example, the right of a party to a controversywith a government agency to speak with government officials about thematter.”6

The primary effect of the change in commentary results in the 2002rule appearing to be more restrictive with respect to contacting governmentemployees on policy questions, as demonstrated by the examples discussedbelow.

[2] — Analogous No-Contact Rules of Selected States.Colorado Rules of Professional Conduct, Rule 4.2. Colorado Rule

4.2 is substantially similar to the Model Rule. The Comment to theColorado Rule regarding communications authorized by law is identicalto the language of Comment [1] to Model Rule 4.2 (1995), set forth abovein Section 3.02.[1], as the Colorado Supreme Court adopted the Commentas contained in the Model Rules.

Kentucky Supreme Court, Rule 4.2. Kentucky Rule 4.2 is alsosubstantially similar to the Model Rule and provides for communicationwith a represented party when authorized by law. Comment [1] to theKentucky Rule explains that the existence of a controversy between agovernment agency and a private party does not prohibit a lawyer fromcommunicating with nonlawyer representatives of the agency on a separate

5 Model Rules of Professional Conduct, R. 4.2 cmt. 5 (2002).6 Model Rules of Professional Conduct, R. 4.2 cmt. 1 (2002).

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matter. Furthermore, “[c]ommunications authorized by law include, forexample, the right of a party to a controversy with a government agencyto speak with government officials about the matter.”7

Ohio Disciplinary Rule, 7-104. Ohio DR 7-104(A)(1) is substantiallysimilar to the Model Rule and provides for communication about thesubject of the representation with a party known to be represented bycounsel where authorized by law to do so. According to Ohio Opinion92-7, the restraints on ex parte communication with a represented partyapply to an attorney’s communications with a government agencyrepresented by counsel in the matter. The restriction on communicationbegins once government counsel is brought into the matter.

Pennsylvania Rules of Professional Conduct, Rule 4.2. ThePennsylvania no-contact rule is substantially similar to the Model Ruleand, again, provides for communication about the subject of therepresentation where authorized by law. In Philadelphia Bar AssociationEthics Opinion 2000-11, the Committee cites with approval the ABAFormal Opinion 97-408 (discussed below), which explains the ABA’sposition on the right to communicate with a government agency concerninga matter within its province.

Virginia Rules of Professional Conduct, Rule 4.2. Virginia’s no-contactrule is substantially similar in language to the Model Rule; however,Virginia did not adopt the ABA Comment to Model Rules. The Notes tothe Virginia rule are silent as to an exception providing for communicationsauthorized by law, which includes the right of a party to a controversywith a government agency to speak with government officials about thematter. The Notes provide that, in the case of an organization,communication is prohibited with persons in the organization’s “controlgroup,” as defined in Upjohn Co. v. United States,8 or persons who maybe regarded as the “alter ego” of the organization. The Virginia ruleprohibits ex parte communications with any employees of the organizationwho, because of their status or position, have the authority to bind thecorporation.

7 Rules of the Supreme Court of Kentucky, SCR 3.130 (4.2), cmt. 1 (1990).8 Upjohn Co. v. United States, 449 U.S. 383 (1981).

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West Virginia Rules of Professional Conduct, Rule 4.2. The WestVirginia no-contact rule is substantially similar to the Model Rule andprovides for communication with a represented party where opposingcounsel consents to the contact or where counsel is authorized by law tomake such contact. The Comment to Rule 4.2 explains that, where acontroversy exists between a government agency and a private party, theno-contact rule does not prohibit a lawyer for either party fromcommunicating with a nonlawyer representative of the other regarding aseparate matter. Moreover, a lawyer having independent justification forcommunicating with the other party is permitted to do so. The Commentfurther states, “Communications authorized by law include, for example,the right of a party to a controversy and a government agency to speakwith government officials about the matter.”9

[a] — Other Jurisdictions and the No-ContactRule.

According to the ABA, most state bar associations and courts thathave considered the issue of contact with government officials are inagreement that the no-contact rule generally applies where lawyers forprivate parties seek to communicate about a controversy with governmentalofficials.10 Likewise, most jurisdictions have interpreted the rule toprovide an exception when the constitutional right to petition is at issue,as well as the “derivative public policy of ensuring a citizen’s right ofaccess to government decision makers.”11 California, on the other hand,specifically exempts from the rule all contact with a representedgovernmental client.12

9 West Virginia Rules of Professional Conduct, R. 4.2 (2003).10 See ABA Comm. on Ethics and Prof’l Responsibility, Formal Op. 97-408, nt. 6

(1991) and cases cited therein.11 ABA Comm. on Ethics and Prof’l Responsibility, Formal Op. 97-408, nt. 7 (1991)

and cases cited therein.12 See California Rules of Professional Conduct, R. 2-100(C)(2004)(“This rule shall

not prohibit communications with a public officer, board, committee, or body.”).

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[3] — Restatement (Third) of Law Governing Lawyers.Compare the ABA’s Model Rule approach to the “General Anti-Contact

Rule” stated in the Restatement (Third) of Law Governing Lawyers.13

The Restatement prohibits communications about the subject matter of therepresentation with a represented non-client, unless “the communication iswith a public officer or agency to the extent stated in § 101.”14 Section 101specifically exempts “communications with employees of a representedgovernmental agency or with a governmental officer being represented inthe officer’s official capacity” from the general prohibition on contact, exceptthat where the communication is in negotiation or litigation of a specificclaim of a client against a governmental agency or governmental officer inhis official capacity. In such a circumstance, Section 101(2) permits contactwith any officer of the government if permitted by the agency or with respectto an issue of general policy.15

§ 3.03. To Contact or Not to Contact (and Under WhatCircumstances) – That Is the Question.

[1] — When Does the No-Contact Rule Apply in General?The no-contact rule may be broken down into five parts for purposes

of analysis. As analyzed by the ABA, the no-contact rule applies in thefollowing context:

1. a “communication”: is that made by the attorney or caused tobe made by his or her agent, including the client;16

2. concerning the “subject of the representation”: means thesubject matter in which the interviewing counsel isrepresenting his or her client;17

13 Restatement (Third) of Law Governing Lawyers §§ 99, et seq. (1998).14 Restatement § 99(1)(a)(1998).15 Restatement § 101(2)(1998).16 ABA Comm. on Prof’l Ethics, Informal Op. 663 (1963); ABA Comm. on Prof’l

Ethics and Grievances, Formal Op. 75 (1932).17 ABA Comm. on Ethics and Prof’l Responsibility, Formal Op. 95-396 (1995);

Colorado Bar Ass’n Ethics Comm., Formal Op. 69 (1987).

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3. made to “a party”: any person, whether or not a party to aformal proceeding, who is represented by counsel concerningthe matter in question. Within an organization, representedparty refers to those with managerial responsibilities andanyone who may legally bind the organization with respect tothe matter in question;18

4. who the attorney “knows” to be represented by a lawyer inthat matter: “knows” is defined as actual knowledge of thefact in question and such knowledge may be inferred fromthe circumstances. An organization is not represented bycounsel in every matter simply because it has in-house counselor counsel on retainer. An organization must have takenaffirmative steps to retain counsel in a specific matter orreferred the specific matter to in-house counsel before it is“represented” for purposes of Rule 4.2;19

5. unless “authorized by law” to communicate without priorconsent: that which is authorized by constitutional provision,statute, rule or order of courts,20 as well as the regulation ofany administrative agency having jurisdiction over the case.Note that the United States Supreme Court, in Chrysler v.Brown,21 rejected the view that any agency conduct that hasbeen directed or approved by an agency head is “authorizedby law,” within the meaning of a statute prohibiting suchconduct except where “authorized by law.” Rather, the Court

18 Model Rules of Prof’l Conduct, R. 4.2 cmt. 7 (2002); Model Rules of Prof’l Conduct,R. 4.2 cmt. 4 (1995); ABA Comm. on Ethics and Prof’l Responsibility, Formal Op. 95-396 (1995); ABA Comm. on Ethics and Prof’l Responsibility, Informal Op. 1377 (1977);

Colorado Bar Ass’n Ethics Comm., Formal Op. 69 (1987).19 ABA Comm. on Ethics and Prof’l Responsibility, Formal Op. 95-396 (1995).20 ABA Comm. on Ethics and Prof’l Responsibility, Formal Op. 95-396 (1995);Colorado Bar Ass’n Ethics Comm., Formal Op. 69 (1987). See, e.g., American Canoe

Ass’n v. City of St. Albans, 18 F. Supp. 2d 620 (S.D. W. Va. 1998).21 Chrysler v. Brown, 441 U.S. 281, 298 (1979).

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held that for a government agency’s regulation to have theforce and effect of law, it must be a substantive regulation,which has been adopted in accordance with the proceduralrequirements imposed by Congress and based in aCongressional grant of authority.

[2] — ABA Formal Opinion 97-408: Communication withGovernment Agency Represented by Counsel.

According to ABA Formal Opinion 97-408, Model Rule 4.2 permitsa lawyer representing a private party in a controversy with the governmentto communicate about the matter with government officials who haveauthority to take or to recommend action in the matter, provided that thesole purpose of the lawyer’s communication is to address a policy issue,including settling the controversy. However, to afford the appropriatebalance between a citizen’s right of access and the government’s right tobe protected from uncounselled communications by an opposing party’slawyer, the American Bar Association Committee on Ethics andProfessional Responsibility (the “ABA Committee”) would require allunconsented contacts with government officials that would otherwise beprohibited by the no-contact rule be subject to two conditions: (1) thegovernment official to be contacted must have authority to take orrecommend action in the controversy and the sole purpose of thecommunication must be to address a policy issue, including the settlementof the controversy; and (2) counsel for the private party must always givegovernment counsel advance notice that it intends to communicate withofficials of the agency to provide the officials an opportunity to discusswith government counsel the advisability of entertaining thecommunication.

Thus, the ABA Committee concluded that, in order to give effect tothe purposes of the Rule, counsel for the private party must always givegovernment counsel reasonable advance notice of an intent tocommunicate, in order to afford government officials the opportunity toseek advice of counsel before entertaining the communication. The ABACommittee would interpret this condition to require counsel for the privateparty to provide the government counsel with an advance copy of anywritten communication. This communication should be provided at a time

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and in a manner to afford government counsel “a meaningful opportunityto advise the official whether to receive the communication from the lawyerfor the other side.”22

[3] — A Survey of Selected State Ethics Opinions.[a] — Colorado Bar Association Formal Opinion 93:

Ex Parte Contacts with Government Officials(1993).

In adopting Formal Opinion 93 on October 16, 1993, the EthicsCommittee of the Colorado Bar Association (the “CBA Committee”)determined that the no-contact rule applies with equal force to a governmentorganization and, therefore, ex parte contact about the subject matter ofrepresentation with an organization represented by counsel in the particularmatter is prohibited. However, an attorney for a private party in litigationwith the government may make contact with government employees whoare not managerial employees, i.e., the so-called “bystander witnesses.”Managerial employees are defined as those employees who, with respectto the subject matter at issue, have the authority to commit the governmentorganization to a position or whose acts or omissions can be imputed to thegovernment or whose statements may be admissible against the governmentorganization. Notwithstanding the foregoing, and given the unique issuesthat are at stake when the government is an opposing party, there aresituations in which ex parte contact is nonetheless “authorized by law,”and, therefore, is permissible according to the CBA Committee. Moreover,an “attorney’s ethical obligations are not altered when a governmentemployee or official initiates direct contact with the attorney, as opposed tothe converse.”23

The CBA Committee concluded that, when the organizational party isa government entity, the no-contact restrictions of Rule 4.2 are “both broaderand narrower in scope than the Comment to the Rule might suggest.”24

22 ABA Comm. on Ethics and Prof’l Responsibility, Formal Op. 97-408 (1991).23 Colorado Bar Ass’n Ethics Comm., Formal Op. 93 (1993)(Ex Parte Contacts withGovernment Officials).24 Id.

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The CBA Committee takes the position, in general, that a narrower readingof the prohibition on ex parte communications “is required to balanceproperly the salutary purpose of the Rule B shielding a represented partyfrom improper approaches B with the fundamental First Amendment rightsat stake when dealing with a governmental organization.”25

Colorado Rule 4.2 is narrower in the following: notwithstanding theComment’s statement that ex parte communications regarding a controversywith that agency are permitted by the “authorized by law” exception, in amatter that is in active litigation or in an adversarial proceeding, Rule 4.2prohibits “such contacts with ‘managerial employees’ of a government body,or government employees or officials whose conduct is at issue in a matter,absent the consent of counsel who is representing the organization in thematter.”26

The Colorado Rule is broader than the Model Rule in that it wouldpermit contact with those government employees or officials who aremanagerial employees only in the limited sense that their statements couldbe deemed admissions against the government organization under theapplicable rule of evidence, without requiring prior notice to counsel, assuch contact is “authorized by law.”27 It is also broader in that it permitscontact with government officials acting in a legislative or rulemakingcapacity (except when specifically prohibited by law), without prior noticeto counsel.

[b] — Opinion of the Kentucky Bar AssociationE-332 (1988).

In September 1988, the Committee on Ethics and Unauthorized Practiceof Law, Kentucky Bar Association (the “Committee”), addressed the issueof whether a lawyer representing a government office or department inlitigation could prevent the non-government opposing counsel fromcontacting all employees of the government department or office outsidethe presence of the government attorney, and determined that government

25 Id.26 Id.27 Id.

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counsel could not prevent such contact.28 The opinion was issued underthe former Kentucky no-contact rule, Disciplinary Rule 7-104(A)(1), whichwas substantially similar in content to the present Kentucky no-contactrule.

The Committee determined that the no-contact rule does not permitgovernment counsel to issue a “blanket veto,” which extends down to fieldemployees and inspectors. The Committee noted that “when the party is amulti-person entity, such as a corporation or a government body . . . DR 7-104’s protection of parties (if interpreted too broadly) may be at odds withthe goal of permitting access to witnesses in order to uncover and presentall relevant evidence to the trier of facts.”29 The Committee analogizedthis type of contact with a represented government party to contact with acorporate party’s employees, noting “DR-107 does not preclude‘unconsented’ contacts with corporate employees who lack the power tobind the corporate opponent, or who do not possess ‘confidential’information belonging to the employer entity.”30 The Committee cites,with approval, Professor Wolfram’s observation that the rule should beconstrued narrowly in this context because of “constitutional guarantees ofaccess to government and statutory policies encouraging government inthe sunshine.”31

[c] — Supreme Court of Ohio, Board ofCommissioners on Grievances and Discipline,Opinion 92-7.

The Supreme Court of Ohio, Board of Commissioners on Grievancesand Discipline (the “Board”) issued Opinion 92-7, addressing the restraints

28 Kentucky Bar Ass’n Comm. on Ethics and Unauthorized Practice of Law, Op. E-332 (1988).29 Kentucky Bar Ass’n Comm. on Ethics and Unauthorized Practice of Law, Op. E-332 (1988), citing Note: DR 7-104 of the Code of Professional Responsibility Appliedto the Government “Party,” 61 Minn. L. Rev. 1007, 1013 (1976-77).30 Kentucky Bar Ass’n Comm. on Ethics and Unauthorized Practice of Law, Op. E-332 (1988).31 Kentucky Bar Ass’n Comm. on Ethics and Unauthorized Practice of Law, Op. E-332 (1988), citing Charles Wolfram, Modern Legal Ethics 614-15 (West Group Publishing1986).

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on an attorney’s contact with a government party represented by counsel.32

The opinion addresses the ethical restraints on an attorney’s ex partecommunications with a government party. For purposes of this analysis,the Board defined “government employee” to include an employee, publicofficial or public body with authority to bind the government, to settle alitigable matter, or whose act or omission gave rise to the matter. Further,for purposes of the no-contact rule, the restriction on communication doesnot begin until government counsel has been brought into the matter.

The Board noted, “There is nothing within the Code of ProfessionalResponsibility to suggest that an attorney’s communications with agovernment party are exempt from the ethical restraints imposed by” theno-contact rule.33 Having determined that the prohibition could apply,the Board further looked at the question of who within the government isconsidered a party for purposes of the rule and when a government partyis considered represented by a lawyer in the matter.

The Board first evaluated the broad and the narrow approaches todefining “government party” and acknowledged that both haddisadvantages. Under the “broad” approach, counsel would be prohibitedfrom ex parte communication with all government officials and employees.The broad approach is impractical, has “the potential for chilling the freeflow of information between the public and the government, and hindersopposing counsel’s ability to gather evidence.”34 The “narrow” approachwould allow ex parte communication with some government employees,but not all. Notwithstanding the perceived disadvantage to governmentcounsel of having to rebut damaging assertions from governmentemployees obtained by opposing counsel outside the presence ofgovernment counsel, the Board determined that “government party” shouldbe defined narrowly. Consequently, under the Ohio interpretation, agovernment department or agency or its counsel should not give blanketinstructions to all employees not to communicate with counsel representingan adverse party.

32 Ohio Board of Commissioners on Grievances and Discipline, Op. 92-7 (1992).33 Id.34 Id.

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Once it is determined who falls within the definition of “governmentparty” for purposes of applying the rule, counsel must determine at whatpoint the rule becomes applicable. The Board followed the lead of theNew York State Bar Association and determined that, for purposes of theno-contact rule, a government party is not represented by counsel untilcounsel is specifically brought into the specified matter.35 As the Boardnoted, “Technically, the government is always represented by counsel.However, if a government party were always considered to be representedby counsel for purposes of the rule, the free exchange of informationbetween the public and the government would be greatly inhibited.”36

Therefore, for purposes of applying the no-contact rule, a governmentparty is considered represented by counsel once government counsel hasbeen brought into the matter.

The Board further notes, however, that whether government counselhas been brought into a matter might not always be obvious to opposingcounsel. Thus, the Board suggests that counsel identify himself or herselfto the government employee and state the purpose of the communicationso that the contacted individual may have the opportunity to adviseopposing counsel whether the government’s counsel has been broughtinto the matter. If so advised, opposing counsel would then have the ethicalobligation to seek consent from the government’s counsel beforeproceeding with the communication.37

Finally, in the context of communicating settlement offers to therepresented government party, the Board makes clear that it is inappropriatefor opposing counsel to forward a copy of a settlement offer or othercommunication directly to the government department or agency, evenwhere the original is served on the government’s counsel.38

35 Ohio Board of Commissioners on Grievances and Discipline, Op. 92-7 (1992), citing

New York State Bar Ass’n, Op. 160 (1970).36 Ohio Board of Commissioners on Grievances and Discipline, Op. 92-7 (1992).37 Id.38 Id.

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[d] — Restatement (Third) of Law GoverningLawyers and Modern Legal Ethics.

The Restatement specifically permits direct lawyer contact with agovernment officer or employee except when the governmental client isrepresented with respect to negotiation or litigation of a specific claimand the contact does not involve an issue of general policy. The Restatementtakes a more-reasoned approach than does the ABA, noting that if thebroad no-contact rule of Model Rule 4.2 were “routinely applied in dealingwith governmental agencies, any matter disputed with a governmentalagency could be pursued with safety only through the agency’s lawyer.Such a result would require in each instance that a lawyer intending tomake direct contact first accurately determine the reach of the FirstAmendment.”39

One commentator takes the position that it is “particularlyinappropriate” to require the consent of an adversary lawyer when theadversary is a government agency.40 “Constitutional guarantees of accessto government and statutory policies encouraging government in thesunshine seem hostile to a rule that prohibits a citizen from access to anadversary governmental party without prior clearance from thegovernmental party’s lawyer.”41 Wolfram would allow contact with agovernmental party without consent and without notice.

§ 3.04. Applying the No-Contact Rule to the RealWorld.

In order to trigger the no-contact rule, there must be a specificcontroversy between the government and the private party, i.e. “the subjectmatter of the representation must have been concretely identified.”42

According to the Colorado Bar Association Committee, an organizationmust have taken affirmative steps to retain counsel in a specific matter orreferred the matter to its in-house counsel before it is represented for

39 Restatement § 101 cmt. B (1998).40 Charles Wolfram, Modern Legal Ethics (West Group Publishing 1986).41 Id. § 11.6.2.42 ABA Comm. on Ethics and Prof’l Responsibility, Formal Op. 95-396 at 15 (1995).

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purposes of Rule 4.2.43 Thus, on-going general representation of agovernment entity by a government law office would not implicate Rule4.2 unless and until the private party’s lawyer learned that the agency hadsought counsel in connection with a particular controversy.44 Thisapproach is similarly followed by the Ohio Board.45

The analysis of the application of the no-contact rule to the followingfactual scenarios will be generally the same for those jurisdictions whichhave adopted Model Rule 4.2 in the same form as that proposed by theABA. Again, however, a reminder: the case law and ethics opinions ofthe specific jurisdiction in which you are practicing must be reviewed todetermine whether your anticipated conduct is permitted under the rulesof professional conduct for that jurisdiction. The Restatement notes that“jurisdictions differ considerably concerning the extent to which directlawyer contact with a government officer or employee is permitted underthe general anti-contact rule.”46 The Restatement further notes that, whileall jurisdictions permit direct contact where such contact is protected bythe right of the client or lawyer under the First Amendment to petition thegovernment for redress of grievances, the scope of otherwise permittedcontact is unclear. “While no explicit exception permitting contact, suchas stated in [§ 101(1)], is stated, commentary in most of the lawyer codessuggests a limited anti-contact rule, although one of indefinite scope.Ethics-committee opinions in some of the jurisdictions construe the anti-contact rule quite narrowly for such representations.”47

[1] — Application of the No-Contact Rule During aRulemaking Adjudication.

If you have filed an action to challenge the agency’s final rule, areyou permitted to call the head of the agency to discuss the issues? Let us

43 Colorado Bar Ass’n Ethics Comm., Formal Op. 93 at 4 (1993).44 ABA Comm. on Ethics and Prof’l Responsibility, Formal Op. 97-408, n. 13 at 3

(1991).45 Ohio Board of Commissioners on Grievances and Discipline, Op. 92-7 (1992).46 Restatement § 101 cmt. b (1998).47 Id.

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assume the following facts: A government agency has published a FinalRule in the Federal Register. Your client takes issue with the rule anddecides to challenge it in federal court. A formal challenge is filed by youon behalf of your client and is answered by government counsel. Is itpermissible for you to enter into negotiations on the rule (i.e., seek tosettle the dispute) directly with the head of the agency or his designee?

Under the current ABA Model Rule approach, communication withthe government agency might be permitted, with prior notice togovernment counsel, for a limited purpose (e.g., exercising a constitutionalor other legal right to communicate with the government). Under ModelRule (1995), communication would have been allowed because you seekto “address a policy issue, including settling the controversy.”48 Whilethe Model Rule approach would require you to inform government counselof the intended communication, including providing advance copies ofany written communication, the consent of government counsel is notrequired. The ABA Committee is unclear on the point of whether noticemust be given each and every time you intend to communicate or if asingle notice of intent to carry on continuing communications would besufficient. Because the purpose of the notice requirement is to afford thegovernment agency the opportunity to seek advice and counsel and decidewhether representation is needed during communications, presumably asingle notification, detailing the intended scope of the communications,would suffice.

According to Colorado Bar Association Formal Opinion 93, “in thecontext of a legislative determination or rulemaking by an agency, ex partecontact with the members of the legislative body or agency is permissibleeven though they are obviously ‘managerial employees’ unless the exparte contact is specifically prohibited by law.”49 Arguably, thediscussions in which you seek to engage could be considered part of the“rulemaking” process, given that the ultimate outcome of the discussionsmay result in a revised rule. Thus, the Colorado Bar Association Committeewould appear to permit such discussions, unless specifically prohibited

48 Model rules of professional conduct, R. 4.2 cmt. 4 (1995).49 Colorado Bar Ass’n Ethics Comm., Formal Op. 93 at 2 (1993).

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by law. However, the CBA Formal Opinion 93 also states that, in thecontext of agency rulemaking or adjudications governed by theAdministrative Procedures Act,50 Congress has restricted ex partecommunications in “on the record” proceedings.51 Therefore, in “on therecord proceedings,” the ex parte communications would not be authorizedby law and Model Rule 4.2’s “authorized by law” exception is notapplicable.

The Ohio Board of Commissioners would allow counsel tocommunicate with government representatives only with prior consent.Opinion 92-7 states that the restriction on contact begins once governmentcounsel is brought into the matter. Because government counsel hasanswered the formal complaint filed by you, you know that governmentcounsel is involved at this time. Thus, without prior consent, you areprohibited from contacting a government employee, public official, orpublic body with authority to bind the government to settle this matter.52

The Restatement would seem to permit direct lawyer contact withthe agency in this context, given that the agency does not stand in a position“closely analogous to a private litigant.”53 The Restatement notes that ifthe announced policy of an agency is that comments concerning a mattershould be directed to a particular officer, such communications may bemade without the consent of agency counsel.

[2] — Application of the No-Contact Rule During anEnforcement Adjudication.

On behalf of your client, you filed an immediate challenge to anenforcement action issued by an agency but you need to resolve underlyingoperational and compliance issues with the agency; under whatcircumstances can you talk to decision makers in the agency? Let usassume the following facts: The agency issues an enforcement action,

50 5 U.S.C. §§ 551, et. seq.51 5 U.S.C. § 557(d)(1).52 Ohio Board of Commissioners on Grievances and Discipline, Op. 92-7 (1992).53 Restatement § 101 cmt. B (1998).

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which is immediately challenged before an adjudicatory body. Theunderlying facts, however, either create on-going operational issues thatneed to be addressed immediately or create a policy issue on a largerscope (e.g., regional or national basis). As counsel, can you continue tocommunicate with the agency in an effort to resolve the operational issueeven though you initiated a contest proceeding and government counselhas answered the contest pleading? The Restatement would specificallypermit direct communication with any governmental officer with powerto affect policy.54 Other governing opinions are less clear.

Under the ABA’s Model Rule (2002) approach, direct contact withagency officials might be permitted if characterized as exercising aconstitutional or other legal right to communicate with the government.As discussed above, Model Rule 4.2 (1995) would permit contact wherethe sole purpose was to “address a policy issue, including settling thecontroversy,” with prior notice to government counsel.55 Again, whileyou do not need government counsel’s consent to communicate with theagency decision maker, you must give notice to government counsel toafford the government the opportunity to seek advice and counsel anddecide whether representation is needed during communications.

If your purpose in contacting the agency official is other than to addressa policy issue or attempt to settle the controversy, the contact may be a bitsuspect. ABA Formal Opinion 97-408 notes that in situations where the“right to petition has no apparent applicability,”56 the Model Rule appliesto a lawyer’s communication with the officials of a represented governmententity in the same way it applies to a represented private organization;thus, no contact is permitted without the consent of counsel.57 Forexample, if your purpose in contacting the agency official, who mayultimately be a fact witness, is to develop evidence for use in litigation,the contact is not “authorized by law” and a violation of Rule 4.2 occurs.

54 Restatement § 101(2)(1998).55 Model rules of professional conduct, R. 4.2 cmt. 4 (1995).56 ABA Comm. on Ethics and Prof’l Responsibility, Formal Op. 97-408 (1991).57 Id.

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One such example is found in ABA Informal Opinion 1377. The ABACommittee on Ethics and Professional Responsibility took the positionthat a building marshal, who had complete authority, including policepower, to inspect, require correction and enforce the building code, couldnot be contacted by counsel for co-defendants regarding his conclusionsas to the cause of a structural failure of a sewer line. The contact occurredduring the course of litigation in which the Metropolitan Governmentwas a defendant, along with private firms, for property damage resultingfrom the sewer line failure. The ABA Committee opined that “nocommunication with an employee of a municipal corporation with powerto commit the municipal corporation in the particular situation may bemade by opposing counsel unless he has the prior consent of the designatedcounsel for the municipal corporation, or unless he is authorized by lawto do so.”58

To the extent that “bystander witnesses” are interviewed during thecourse of a factual investigation, counsel for the private party does notneed prior consent of government counsel to communicate with suchemployees. However, any information gathered during the course ofinformal interviews will generally not be permitted to be used as anadmission of a party-opponent under the Rules of Evidence.59 As thecourt noted, you can’t have your evidentiary cake and eat it too . . .

The enforcement adjudication scenario presents a more complicatedanalysis under the Colorado Rule and requires a careful determination ofthe context in which the contact occurs and to whom contact is made. Ingeneral, because the Colorado Bar Association Committee does not believethat the general “authorized by law” exception “was intended to support

58 This opinion was subsequently limited to some extent by ABA Formal Op. 97-408,which explains that consent (not just notice) was properly required in this instance becausethe purpose of the contact was not to resolve a policy issue, but rather for the purpose ofgaining admissions useful against the government at trial. Accordingly, Informal Op.1377 should not be read to suggest a bar to all unconsented communications withgovernment officials. ABA Comm. on Ethics and Prof’l Responsibility, Formal Op. 97-408 at nt. 15 (1991).59 B.H. v. Johnson, 128 F.R.D. 659, 663 (N.D. Ill. 1989).

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ex parte contacts with managerial government employees or withgovernment employees whose conduct is at issue in a matter that is inactive litigation or in an adversarial administrative proceeding,” consentof counsel would be required.60 Keep in mind that managerial employeesare those who, with respect to the subject matter of the representation,have the authority to commit the government organization to a positionor whose acts or omissions can be imputed to the government or whosestatements may be admissible against the government organization.61

The CBA Committee further states that “in any setting ex parte contactsare permissible with the prior consent of the attorney representing thegovernment entity.”62

If, however, an informal review process is specifically contemplatedby statute or rule, this may be construed as specifically authorizing contactwithout notice to government counsel. For example, discussion regardingthe merits of the case may arise in the context of a regulatorily recognizedconference process (i.e., a safety and health conference pursuant to 30C.F.R. § 100.6 for MSHA matters). The CBA Committee would appearto allow ex parte contact without notice or consent of government counselin that circumstance. CBA Formal Opinion 93 states that, where a specificstatute, rule or ordinance permits contact with the government employeeor official, counsel may proceed ex parte without notifying governmentcounsel.63

Like Colorado, the Kentucky Bar Association requires a carefuldetermination of the context in which the contact occurs and to whomcontact is made. In general, the Kentucky Rule may require consent. Inthe case of an organization, the Kentucky Rule prohibits communicationsby a lawyer for one party concerning the matter in representation withpersons having a managerial responsibility on behalf of the organization,and with any other person whose act or omission in connection with that

60 Colorado Bar Ass’n Ethics Comm., Formal Op. 93 at 8 (1993).61 Colorado Bar Ass’n Ethics Comm., Formal Op. 93 (1993).62 Colorado Bar Ass’n Ethics Comm., Formal Op. 69 at 2 (1987).63 Colorado Bar Ass’n Ethics Comm., Formal Op. 93 at 5 (1993).

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matter may be imputed to the organization for purposes of civil or criminalliability or whose statement may constitute an admission on the part ofthe organization.64 Comment [2] to the Kentucky Rule suggests that,prior to communication with a nonmanagerial employee or agent of anorganization, the lawyer should disclose to the individual the lawyer’sidentity and the fact that the lawyer represents a party with a claim againstthe organization.65 The Kentucky Rule would appear to preclude“unconsented” contacts with government employees with the authorityto bind the agency; however, contact with non-managerial governmentemployees is permitted without obtaining prior consent.

[3] — Application of the No-Contact Rule During aSubsequent Investigation.

Where an underlying enforcement action continues moving forwardwhile the agency proceeds with a secondary criminal or civil investigation,can you coordinate the investigation on your client’s behalf directly withthe investigator? Let us assume the following facts: Your client has beenissued enforcement actions that you immediately contest in theadjudicatory forum. The proceeding has been stayed, pending furtherinvestigation that is being conducted by the agency to determine whetheradditional criminal or civil liability against individuals should be charged.Does the no-contact rule permit you to talk to the investigator on yourclient’s behalf without notifying government counsel?

Under these factual circumstances, the first thing to do is determinewhether the Rule applies. First, you must determine whether the agencyis represented by counsel in the specific subject matter of representation.This requires you initially to determine what is the subject matter of therepresentation. The next step is to assess whether you know if the agencyis “represented” in the matter. Who is directing the investigation—government counsel or an individual from within the agency? It is not

64 Kentucky Bar Ass’n Comm. on Ethics and Unauthorized Practice of Law, Formal

Op. E-332 cmt. 1 (1988).65 Kentucky Bar Ass’n Comm. on Ethics and Unauthorized Practice of Law, Op. E-

332 cmt. 2 (1988).

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sufficient for purposes of “representation” under the Rule that the agencymerely has on-going representation of government counsel. Given thenature of this type of investigation, it may be challenging to separate outcommunication regarding the subject matter of representation in whichyou know the agency is represented (i.e., the facts related to the underlyingenforcement action) and the subject matter of the secondary investigation(i.e., the facts related to the determination of individual criminal or civilliability). However, contact with a special investigator would be permitted,absent knowledge of legal representation on the specific issue.

[4] — Application of the No-Contact Rule to Contact of aFormer Government Employee.

You are preparing for a hearing on an enforcement action and want tointerview the inspector who issued the citation as part of your factualinvestigation. The inspector is no longer with the agency but may be calledas a witness in the proceeding. Are you permitted to contact him? Let usassume the following facts: You are preparing for a hearing on a citationcontest and learn that the issuing inspector has retired from the agency.You would like to hear what he has to say and, perhaps, have him interprethis hastily scrawled field notes that you received during discovery. Theattorney handling the matter for the government says that he is unsure ofthe inspector’s present location and he cannot promise that the inspectorwould appear for a deposition. You want to talk to the inspector informally.Can you contact the former employee on your own?

ABA Formal Op. 95-396 states that Rule 4.2 “does not prohibitcontacts with former officers or employees of a represented corporation[or government agency], even if they were in one of the categories withwhich communication was prohibited while they were employed.”66

Permitted contact under Rule 4.2 notwithstanding, gaining informationfrom a former government employee that the lawyer knows is legally

66 ABA Comm. on Ethics and Prof’l Responsibility, Formal Op. 95-396 n. 47 at 16(1995), citing ABA Comm. on Ethics and Prof’l Responsibility, Formal Op. 91-359

(1991).

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protected from disclosure for use in litigation may violate Model Rules4.4, 8.4(c) and 8.4(d) and may result in court-imposed sanctions.67

The Colorado Bar Association Committee would agree: the distinctionbetween bystander and non-bystander witnesses does not apply to anorganization’s former employee. (During his employment, the inspectormay have been characterized as a managerial employee for purposes ofex parte contact.) After leaving the organization’s employ, a formeremployee cannot bind the organization as a matter of law.68 Thus, exparte contact is permissible. Moreover, because a former employee is notthe “party,” i.e., the organization, an attorney does not violate Rule 4.2 bycommunicating directly with the organization’s former employee aboutthe substantive dispute without the prior consent of the organization’scounsel.69

Other jurisdictions approach contact with former governmentemployees similarly to the ABA and the CBA Committee. Under thePennsylvania Rule, the Philadelphia (PA) Bar Association has determinedthat contact with a former employee is permitted and the prohibitions setforth in Rule 4.2 do not apply to former employees, regardless of theirformer level of managerial responsibility.70 The Virginia Rule alsodisregards the employee’s level of managerial responsibility, once theemployee is no longer employed with the organization. The Notes to theVirginia Rule state, “The prohibition [on contact] does not apply to formeremployees or agents of the organization, and an attorney may communicateex parte with such former employee or agent even if he or she was amember of the organization’s ‘control group.’”71

67 ABA Comm. on Ethics and Prof’l Responsibility, Formal Op. 97-408, n. 14 at 7(1991).68 Colorado Bar Ass’n Ethics Comm., Formal Op. 69 at 7 (1987). See, e.g., Fed. R.Evid. 801(d)(2)(D); Securities and Exchange Comm’n v. Geon Indus., Inc., 531 F.2d 39,43 n.3 (2d Cir. 1976).69 Colorado Bar Ass’n Ethics Comm., Formal Op. 69 at 7 (1987). See, e.g., Wright v.Group Health Hosp., 691 P.2d 564 (Wash. 1984).70 Philadelphia Bar Ass’n Prof’l Guidance Comm., Op. 93-9 (September, 1993).71 Virginia Rules of Professional Conduct, R. 4.2 nt. 4 (2004).

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The Kentucky Bar Association follows Colorado, Pennsylvania andVirginia in determining that contact with a former employee is permittedwithout the consent of or notification to the organization’s lawyer.However, a lawyer seeking information from a former employee of agovernmental or organizational party should disclose the lawyer’s identityand the fact that the lawyer represents a party with a claim against theindividual’s former employee. Interestingly, the Kentucky Bar Associationplaces the burden on the organization or governmental entity to protectfrom disclosure information possessed by former employees: “It isincumbent on the party who knows that its former employees possessprivileged information to utilize confidentiality agreement and/or seeprotective orders.”72

The West Virginia Rule would only foreclose ex parte interviews offormer employees of an organization where such employee is representedby his or her own counsel.73

According to Professor Wolfram, a present employee whose positionin a matter is only that of holder of factual information should be freelyaccessible to the lawyer for either side.74 Thus, it follows that a formeremployee who is only a holder of factual information would be equallyaccessible for interviews by the private party lawyer. Under nocircumstances, however, may the lawyer inquire into privileged attorney-client communications, nor may the attorney listen while the formeremployee attempts voluntarily to disclose privileged communications.75

72 Kentucky Bar Ass’n Comm. on Ethics and Unauthorized Practice of Law, Op. E-381 (1995), citing Nalian Truck Lines v. Nakano Warehouse & Transp. Corp., 8 Cal.

Rptr. 2d 467, 472 (Cal. App. 1992).73 State ex rel. Charleston Area Med. Ctr. v. Zakaib, 437 S.E. 2d 759 (W. Va. 1993).74 Charles Wolfram, Modern Legal Ethics at § 11.6.2. (West Group Publishing 1986).75 ABA Comm. on Ethics and Prof’l Responsibility, Formal Op. 91-359 (1991); See,e.g., Camden v. State of Maryland, 910 F. Supp. 1115 (D. Md. 1996)(holding that exparte contact with former employee who was extensively exposed to confidentialinformation is precluded and disqualifying plaintiff’s counsel from the proceedings).

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A caveat, however: the issue of whether contact with formeremployees is permitted under Rule 4.2, and the scope of contact, hasbeen interpreted by different jurisdictions in various ways.76

Consequently, on this point, it would be of the utmost importance that thepractitioner research the law of the specific jurisdiction applicable to himor her before attempting contact with a former government employee.

§ 3.05. Selected Decisions Addressing Consequences ofViolating the No-Contact Rule.

As a practical matter, violations of Rule 4.2 will be dealt with by thecourt hearing the proceeding. Suppression, return of documents and notes,or even disqualification may be ordered.77

[1] — New York Code of Professional Responsibility,DR 7-104(A)(1).

An alleged violation of New York Code of Professional Responsibility,DR 7-104(A)(1), which is substantially similar to Model Rule 4.2, brought

76 See, e.g., Niesig v. Team I, et al., 76 N.Y.2d 363, 558 N.E.2d 1030 (1990)(holdingthat the no-contact rule applies “only to current employees, not to former employees”);Wright by Wright v. Group Health Hosp., 103 Wash. 2d 192, 691 P.2d 564(1984)(reasoning that former employees could not possibly speak for or bind thecorporation, therefore the no-contact rule has no application to them); PolycastTechnology Corp. v. Uniroyal, Inc., 129 F.R.D. 621 (S.D.N.Y. 1990)(holding that therule does not bar contacts with former corporate employees, at least in absence of ashowing that the employee possessed privileged information). Cf. Porter v. Arco Metals,642 F. Supp. 1116 (D. Mont. 1988)(holding rule bars ex parte contacts with formeremployees who had managerial responsibilities concerning the matter at issue whileemployed); Public Serv. Elec. and Gas Co. v. Associated Elec. and Gas Ins. Serv., Ltd.,

745 F. Supp. 1037 (D.N.J. 1990)(interpreting the rule to apply to all former employees).77 See, e.g., United States v. Santiago-Lugo, 162 F.R.D. 11 (D.P.R. 1995)(lawyerswho interviewed represented co-defendants were censured, ordered to submit originalnotes of interviews and sworn statement taken from one defendant, and prohibited fromusing any of the information for cross-examination); Faison v. Thornton, 863 F. Supp.1204 (D. Nev. 1993)(evidence excluded, and lawyers disqualified and ordered to pay$46,000 in fees as sanction); Shelton v. Hess, 599 F. Supp. 905 (S.D. Tex. 1984)(contactsby plaintiff’s lawyer unfairly prejudiced defendant; disqualification of counsel wasappropriate).

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about Frey v. Dep’t of Health.78 In this case the offending attorneyrepresented the plaintiff employee in a suit against the Social SecurityAdministration (SSA). The lawyer wanted to interview employees of theSSA without the Administration’s counsel present. Counsel for the SSAthen sought a protective order to prohibit any contact between the plaintiff’sattorney and SSA employees unless SSA counsel was present.

As a result of the defendant’s request for a protective order, the courtapplied an “alter ego” analysis. According to DR 7-104, the attorney wasprohibited from ex parte communication with Administration employeeswho could (a) bind the agency to a decision, or (b) settle controversies onits behalf. However, statements by non-“alter ego” SSA employees werenot considered admissions of the Administration because these employeeswere not “parties” to the litigation. The plaintiff’s attorney agreed not tocontact high level or “alter ego” employees ex parte, but the court allowedthe ex parte informal contact with all other SSA employees.

In the case of Schmidt v. State of New York,79 the defendant stategovernment contended the claimant’s attorney violated New York Codeof Professional Responsibility, DR 7-104(A)(1) when the attorney allowedhis private investigator to interview and tape record the employee witnessesabout the case. The claimants filed suit against the state approximatelytwo weeks after the interviews took place. The state moved to suppressthe statements gathered during the ex parte interviews.

The court denied the defendant’s motion to suppress. The court foundthat although the employees interviewed were “parties” because theirstatements could help the plaintiffs establish their claim against the state,counsel did not yet represent them because they had not yet spoken to theattorney general’s office. In any event, the claimant’s lawyer did not“know” that these employees were represented by counsel. The fact thata governmental entity is represented by counsel does not mean that low-level employees are automatically represented by counsel.

78 Frey v. Dep’t of Health, 106 F.R.D. 32 (E.D.N.Y. 1985).79 Schmidt v. State of New York, 695 N.Y.S. 2d (N.Y. Ct. Cl. 1999).

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[2] — Connecticut Rules of Professional Conduct,Rule 4.2.

Rule 4.2 of the Connecticut Rules of Professional Conduct is alsosubstantially similar to Model Rule 4.2. The Connecticut rule wasaddressed in Service v. City of Meriden.80 In this case the City of Meridenmoved for sanctions against the plaintiff’s attorney in a slip-and-fall actionagainst the City after the attorney interviewed the City Clerk, the Directorof Public Works, an administrative secretary, and an account clerk withoutnotice to the City’s counsel. In addition, the attorney sought to interviewthe Assistant Director of Water Operations and identified two employeesas expert witnesses for the plaintiff.

The court applied an “alter ego” analysis similar to the analysis appliedin Frey. The court ruled that ex parte contact with the City Clerk, Directorof Public Works and Assistant Director of Water Operations was prohibitedbecause they were “represented parties” if they “could commit the [agency]because of their authority as . . . employees or for some other reasons thelaw cloaks them with authority.”81 Identifying employees as “expertwitnesses” does not avoid requirements of the Rules. In addition, althoughmost of the information sought by the attorney was public informationunder the Freedom of Information Act, that fact does not allow anavoidance of the requirements of the Rules. The plaintiff’s attorney wasordered to pay $250.00 for attorney’s fees.

In the case of Rivera v. Rowland82 an attorney represented plaintiffsin a lawsuit against the State Division of Public Defender Services. Theattorney contacted lawyers employed by the Division, which resulted inthe Division seeking a protective order barring all contact with itsemployees without first obtaining the consent of the Division’s counsel.

The court granted the order in part and denied the order in part. Thecourt applied the “control group” analysis to determine who fell withinparty status and, therefore, within the protection of the no-contact rule. In

80 Service v. City of Meriden, 1995 WL 681537 (Conn. Super. Ct. 1995).81 Id.82 Rivera v. Rowland, 1996 WL 953943 (Conn. Super. Ct. 1996).

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so doing, the court noted that it is “not the purpose of the rule to protect acorporate party from the revelation of prejudicial facts . . . Rather, therule’s function is to preclude the interviewing of those corporate employeeswho have the authority to bind the corporation.”83 The court ruled thatthe attorney was permitted to speak to non-supervisory assistant publicdefenders because they had no authority to bind the Division or settlecases on its behalf and they do not act in a managerial capacity. The orderwas granted with respect to employees with managerial responsibilitiesand a hearing was scheduled to determine the managerial capacity of otherpublic defenders and supervisory assistant public defenders.84

§ 3.06. Conclusion.Under certain circumstances and for specific purposes, it is permissible

to contact the decision makers within a government agency, which youknow to be represented by counsel, about the subject matter of therepresentation. The ABA would interpret the “authorized by law” exclusionto allow for ex parte contact in specific circumstances for a certain purposewith prior notice to government counsel, but would not require consent.Other jurisdictions appear to require consent, except in very limitedsituations.

The analysis is very fact specific and jurisdiction dependent. To theextent that applicable case law does not establish the parameters of theright of the client or his counsel to petition for redress of grievances, theprivate party’s lawyer should seek to obtain court approval to interview agovernment official where the matter is in litigation.

83 Id. at 953957.84 Id. at 953944-45.

§ 3.06

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