Advisory Opinion: 201803

Year Issued: 2018

RPC(s): RPC 4.2, ABA Opinion 97-408

Subject: Communication with Represented Government Employee


Issue presented: May an attorney communicate directly with low-level government employees if the government entity is represented by counsel?

Discussion:

RPC 4.2 provides:
“In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order.”

This inquiry raises two issues under RPC 4.2. First, is a low-level staff employee of a government entity a person represented by a lawyer for the entity? Second, does the First Amendment right to petition the government for redress mean that the contact is “authorized . . . by law”?

A. Contacts with employee of a represented entity

As comment [10] to RPC 4.2 indicates, “[w]hether and how lawyers may communicate with employees of an adverse party is governed by Wright v. Group Health Hospital, 103 Wn.2d 192, 691 P.2d 564 (1984).” In Wright, our Supreme Court held that Rule 4.2 only applies to communications with what has come to be called the entity “control group,” which Wright more specifically defines to consist of “only those employees who have the legal authority to `bind’ the corporation in a legal evidentiary sense, i.e., those employees who have `speaking authority’ for the corporation.” 103 Wn.2d at 200.

We find no reason to distinguish between employees who in fact witnessed an event and those whose act or omission caused the event leading to the action. It is not the purpose of the rule to protect a corporate party from the revelation of prejudicial facts. Accord, Coburn v. Seda, 101 Wash.2d 270, 276–77, 677 P.2d 173 (1984) (discovery immunity statute will be strictly construed; it does not grant an immunity to information available from original sources).
Rather, the rule’s function is to preclude the interviewing of those corporate employees who have the authority to bind the corporation. H. Drinker, Legal Ethics 201 (1953).

We hold current Group Health employees should be considered “parties” for the purposes of the disciplinary rule if, under applicable Washington law, they have managing authority sufficient to give them the right to speak for, and bind, the corporation. Since former employees cannot possibly speak for the corporation, we hold that [the predecessor to RPC 4.2] CPR DR 7–104(A)(1) does not apply to them.

Id. 103 Wn.2d at 200-01. Thus, under Wright, contacts with government employees who are potential witnesses and/or those whose governmental acts or omissions caused an alleged injury are not subject to the rule unless either they (a) have retained their own attorney or are individually represented by counsel or (b) have “managing/speaking” authority for the agency.

Comment 7 to RPC 4.2 attempts to codify Wright by stating that the Rule only prohibits contact with an employee who “supervises, directs or regularly consults with the organization’s lawyer concerning the matter or has the authority to obligate the organization with respect to the matter.” Similarly, Comment 10 adds that the matter is governed by the Wright case. If an employee is not in that limited class of persons, RPC 4.2 does not apply to the communication.

A government lawyer may not instruct all agency employees not to have ex parte contacts with outside lawyers. The Wright case addressed this possibility and concluded it was improper for an entity to advise its employees not to speak with the opposing party’s attorneys but that the employees were not required to meet ex parte with the opposing counsel. Id., 103 Wn.2d at 202-03. See also RPC 3.4, cmt [5] which explains that “Washington did not adopt Model Rule 3.4(f), which delineates circumstances in which a lawyer may request that a person other than a client refrain from voluntarily giving information to another party, because the Model Rule is inconsistent” with Wright.

However, an opposing counsel who knows that the government lawyer represents an individual government employee may not contact that employee. This does not mean that the government lawyer may prevent such contacts simply by asserting that the government lawyer represents every employee of the government. Rather, for RPC 4.2’s prohibition on ex parte contacts to apply, the government lawyer has to have an attorney-client relationship with that specific employee. n.1 This advisory opinion cannot address whether an attorney-client relationship exists between the government lawyer and low-level agency employees because that determination would need to be made for each individual. “The essence of the attorney/client relationship is whether the attorney's advice or assistance is sought and received on legal matters. . . The existence of the relationship ‘turns largely on the client's subjective belief that it exists.’" Bohn v. Cody, 119 Wn.2d 357, 363, (quoting In re McGlothlen, 99 Wn.2d 515, 522, 663 P.2d 1330 (1983)).

Thus, if the low-level government employees do not supervise, direct or regularly consult with the government lawyer concerning the matter, do not have the authority to obligate the government with respect to the matter, and are not individually represented by the government lawyer, the opposing lawyer may contact those employees directly.

B. “Authorized by law” exception

If RPC 4.2 applies to the government employee as discussed above, the opposing counsel may not contact the employee without the government lawyer’s consent unless the contact is authorized by law or court order. Here, a key question is whether the constitutional right to petition for a redress of grievances, U.S. Con., amendment 1 and Washington Con., Art. 1, sec. 4, permits contact with such a government employee under the “authorized by law” exception to RPC 4.2. Like the rights to speech and assembly, the petition right “is subject to reasonable restraints and limitations as are other rights protected by the federal and state constitutions.” State v. Gossett, 11 Wn. App. 864, 866, 527 P.2d 91, 93 (1974).

Unfortunately, there is limited legal precedent as to whether and to what extent the right to petition makes direct contact with a government employee “authorized by law” under RPC 4.2.

ABA Opinion 97-408 addresses this question, but its analysis is not entirely consistent with RPC 4.2. That opinion concludes that “Rule 4.2 does not prohibit a lawyer representing a private party in a controversy with the government from communicating directly with governmental officials who have authority to take or recommend action in the matter, provided the communication is solely for the purpose of addressing a policy issue, including settling the controversy.” (Footnote omitted). However, that opinion was based on a comment that was later revised. In addition, the opinion also states that “the lawyer for the private party must always give government counsel advance notice that it intends to communicate with officials of the agency to afford such officials an opportunity to discuss with government counsel the advisability of entertaining the communication.” This requirement has no basis in the text of RPC 4.2 or even its comments. For these reasons, we decline to adopt the reasoning of ABA Opinion 97-408.

There is little other authority and no controlling Washington precedent that addresses whether the constitutional right to petition authorizes direct contact with a government employee. While certain communications with a government employee would fall within the right to petition, RPC 4.2’s requirement that such communications be directed to the government lawyer may be found to be a reasonable restriction.

The Committee therefore is unable to provide an opinion on whether the right to petition would permit opposing counsel to communicate directly with a government employee if that communication is otherwise prohibited by RPC 4.2.

Contacts with government employees may be “authorized by law” in specific kinds of cases, quite apart from any authority contained in the right to petition. For example, serving a summons and complaint directly on a represented opposing party is authorized by law. Advisory Opinion 201502. But identification or cataloguing of such legal authority is beyond the scope of this opinion.


Footnotes

1. RPC 1.13(g) and 1.7 governs whether the government lawyer may represent both the government and a government employee individually. That issue is beyond the scope of this opinion.

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Advisory Opinions are provided for the education of the Bar and reflect the opinion of the Committee on Professional Ethics (CPE) or its predecessors. Advisory Opinions are provided pursuant to the authorization granted by the Board of Governors, but are not individually approved by the Board and do not reflect the official position of the Bar association. Laws other than the Washington State Rules of Professional Conduct may apply to the inquiry. The Committee's answer does not include or opine about any other applicable law other than the meaning of the Rules of Professional Conduct.