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Introduction and Scope
The Ethics Committee of the Colorado Bar Association (the "Committee") has received inquiries concerning the scope of the ethical prohibition on ex parte contacts with a government organization(1) represented by counsel. Situations frequently arise in and outside of litigation where a lawyer may wish to contact public officials, public bodies, agency employees and other government personnel about governmental decisions or conduct.
Several years ago, in the broader context of ex parte contacts with an organizational party, the Committee issued CBA Ethics Committee Formal Opinion 69 (Revised June 20, 1987) ("Opinion 69"). This opinion serves to supplement Opinion 69 and provide more particular guidance with respect to contacts with government organizations. Because there is a relative dearth of case law on this subject, the Committee has analyzed and relied upon a number of opinions from other state bar associations that have considered the propriety of ex parte contacts with a government organization, in addition to the few reported decisions.
Syllabus
In general, the ethical rule prohibiting ex parte contacts with an organization represented by counsel in a particular matter about the subject matter of that representation applies with equal force to a government organization. As in the case of a non-government organization, an attorney may make ex parte contact with employees or officials who are not "managerial employees," i.e., the so-called "bystander witnesses." Managerial employees, as described in Opinion 69, are those who, with respect to the subject matter of the representation, have the authority to commit the government organization to a position or whose acts or omissions can be imputed to the government or whose statements may be admissible against the government organization.
The fundamental constitutional rights to speak and to petition one's government for the redress of grievances may in some circumstances conflict with this general ethical rule. In order to balance these competing concerns, an attorney may make ex parte contact with that more limited group of government employees or elected officials who are only considered "managerial employees" in the sense that their statements may be admissible against the government organization, but who are not in positions of authority and whose conduct is not at issue in contemplated or commenced litigation or other proceedings. In addition, in the context of a legislative determination or rulemaking by an agency, ex parte contact with the members of the legislative body or agency is permissible even though they are obviously "managerial employees," unless the ex parte contact is specifically prohibited by law. It is important to keep in mind that in any setting ex parte contacts are permissible with the prior consent of the attorney representing the government entity.
Opinion
The ethical principle at issue is codified in Rule 4.2 of the Colorado Rules of Professional Conduct, which provides as follows:
Rule 4.2 - Communication with Person Represented by Counsel.
In representing a client, a lawyer shall not communicate about the subject of the representation with a party 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 by law to do so.
The "Committee Comment" to Rule 4.2 makes clear that the ethical principle embodied is essentially the same as contained in DR 7-104(A) under the now superseded Code of Professional Responsibility. Therefore, Opinion 69, which is based upon DR 7-104(A), continues to define the general scope of prohibited ex parte contacts with employees or former employees of an organization.
For the purpose of addressing the narrower issues raised when the organization is a government body, the Committee does not believe it is necessary to restate the substance of Opinion 69. Nevertheless, it should be noted that Opinion 69 analyzed DR 7-104(A) in terms of its five constituent parts: (1) a "communication"; (2) concerning the "subject of the representation"; (3) made to "a party"; (4) who the attorney "knows" to be represented by counsel in the matter; unless (5) the attorney is "authorized by law" to communicate with the party without prior consent.
On its face, Rule 4.2 does not distinguish between governmental and nongovernmental organizations. In general, the Rule applies to an attorney's communications with a government organization through its employees and elected and other public officials. See Ohio S. Ct. Bd. of Comm'rs on Grievances and Discipline, Op. 92-7 (1992); Ass'n of the Bar of the City of N.Y. Comm. on Professional and Judicial Ethics, Formal Op. 1991-4 (1991). An attorney's ethical obligations in this regard are not altered when a government employee or official initiates the direct contact with the attorney, as opposed to the converse. Nevertheless, because of the unique issues at stake when the government is a party, there are situations in which ex parte contacts are nonetheless "authorized by law," and, thus, permissible.
This opinion will attempt to define the scope of the "authorized by law" exception in addressing the constitutional rights at issue. This opinion is not intended to be all-encompassing. For example, it does not specifically address the ethical issues involved when a prosecuting attorney attempts to make ex parte contact with a criminal defendant. Moreover, no attempt has been made to list or discuss specific federal, state or local laws, rules or regulations that may specifically authorize direct contact between an attorney and a government employee or official.(2) The Committee believes that a narrower reading of the prohibition on ex parte contacts is required to balance properly the salutary purpose of the Rule - shielding a represented party from improper approaches - with the fundamental First Amendment rights at stake when dealing with a governmental organization.
Although Rule 4.2 says nothing about whether its scope is limited to the litigation setting, it is obvious that the issue of ex parte contacts will most frequently arise in the context of threatened or existing lawsuits or adversarial administrative proceedings. Nonetheless, because Rule 4.2 is not so limited, we will address its scope in non-litigation settings, such as lobbying efforts and business transactions with governmental bodies. Indeed, the Comment to the Rule recites that its ambit includes "any person, whether or not a party to a formal proceeding, who is represented by counsel concerning the matter in question."
Who is the "Party"?
In the context of an adversarial proceeding, Opinion 69 takes the position recited in the Comment to Rule 4.2 that an organizational party's employee is also considered to be a "party" - whether or not named as a party - if he or she meets one of three criteria: (1) the employee has managerial responsibility for the organization; (2) the employee's act or omission in connection with the litigation is imputable to the organization for purposes of assessing civil or criminal liability; or (3) the employee's statement may constitute an admission against the organization. Any employee of the organizational party not meeting any of these three tests is considered a "bystander" witness and may be contacted ex parte by counsel for the opposing party. The Comment's analysis of Rule 4.2 does not change when the setting is not an adversarial proceeding, such as in a contract negotiation.
When is the Organization Represented by Counsel?
As stated in Opinion 69, an attorney must "know" that an organization is represented by counsel in the matter for the ex parte prohibition to apply. Under the Colorado Rules of Professional Conduct, to "know" is defined as "actual knowledge of the fact in question [;however,] knowledge may be inferred from circumstances." This level of awareness of representation does not differ substantially from that which pertained under the former DR 7-104(A)(l) or as described in Opinion 69. See Opinion 69.
An organization, whether it is a private entity or a government body, is not represented by counsel in every matter, adversarial or not, simply because it has counsel on general retainer or has an in-house counsel staff. An organization must have taken affirmative steps to retain counsel in a specific matter or referred the matter to its in-house counsel before it is represented for the purpose of Rule 4.2. See Opinion 69; N.C. State Bar Ass'n Op. 132 (1992) (reported in Nat'l Rptr on Legal Ethics n. 1, 1993, NC:Opinions: 11) (lawyer representing defaulting borrower may contact city loan officer without knowledge or consent of city attorney because lawyer has not received notice that city attorney is participating in this matter).
For example, one can always say in general parlance that the federal government is represented by the Justice Department, the State of Colorado by the Attorney General and a municipality by its City Attorney. To apply this definition of representation to the governmental organization in both adversarial and nonadversarial matters, however, would be to stultify even ordinary communications with the government. In addition, it may not be at all obvious to an attorney that the government body he or she wishes to deal with is represented by counsel in that matter. Therefore, at the outset of a permissible ex parte contact, an attorney should identify himself or herself as such and state the purpose of the inquiry. This procedure is consistent with Rule 4.3 of the Colorado Rules of Professional Conduct, which addresses contact with unrepresented persons. If an attorney remains in doubt about the involvement of counsel in a particular matter, it would be prudent for the lawyer to make inquiries of the government organization's regular counsel to determine whether there is counsel for the particular matter. See Opinion 69.
"Authorized by Law" Exception
The ABA's Comment to Model Rule 4.2, repeated verbatim in the Colorado Comment to Rule 4.2, contains a broad statement about the "authorized by law" exception to the ex parte prohibition: "Communications authorized by law include, for example, the right of a party to a controversy with a government agency to speak with government officials about the matter."(3) If this statement were taken literally, it might vitiate the Rule. At face value, this comment could permit ex parte contacts in litigation with a government decisionmaker or a government employee named in the suit. The Committee, however, does not believe that this comment was intended to support ex parte contacts with managerial government employees or with government employees whose conduct is at issue in a matter that is in active litigation or in an adversarial administrative proceeding. See Opinion 69; ABA Comm. on Ethics and Professional Responsibility, Informal Op. 1377 (1977) (where city is defendant in property damage suit arising from allegedly defective sewer system, plaintiff's counsel may not interview the building marshal ex parte; because of his authority to enforce the building code, he is the city's alter ego). Beyond these groups, however, counsel is free to make ex parte contact with government employees. See, e.g., B.H. v. Johnson, 128 F.R.D. 659 (N.D. Ill. 1989) (rejecting the application of DR 7-104(A)(1) to low-level employees whose statements may be deemed admissions and, as a counterbalance, refusing to allow informal ex parte statements by such employees to be admitted); Frey v. Dept. of Health and Human Services, 106 F.R.D. 32 (E.D.N.Y. 1985) (to include non-managerial employees within term "party" under DR 7-104(A) would conflict with goal of broad access to witnesses to uncover and present all relevant evidence); Vega v. Bloomsburg, 427 F. Supp. 593 (D. Mass. 1977) (the interest of state officials who were parties to an action in being protected from the statements of their employees in informal ex parte interviews is outweighed by the First Amendment right of those employees to speak if they wish it); Me. State Bar Comm. on Ethics, Op. 94 (1989) (attorney may contact any municipal employee who does not make decisions about the litigation, is not responsible for seeking legal advice for the city or informing city council about policy matters, and does not direct staff preparation for the litigation).
The Committee believes that a balancing test favoring ex parte contacts in close cases is appropriate because when the government is a party there is a fundamental right to petition the government for a redress of grievances under both the First Amendment and Article II, Section 24, of the Constitution of the State of Colorado.(51) This is particularly true in a legislative, regulatory or administrative setting. The First Amendment right at issue constitutes "an authorized by law" exception to Rule 4.2. See Comm. on Professional Ethics and Conduct of the Iowa State Bar Ass'n Op. 87-29 (1988) (attorney of potential defendant in proposed suit by city council may contact council members to lobby against filing of suit without knowledge or consent of city attorney); Ala. State Bar Ass'n Op. 88-84 (1989) (attorney for plaintiff homeowners in suit against county officials for reconsideration of zoning decision may meet with defendants ex parte because plaintiffs have constitutional right to petition elected officials for redress of grievances).
The "authorized by law" exception is also obviously meant to accommodate federal, state and local statutes that specifically permit a lawyer directly to contact a represented party. For example, where parents are given the right to attend planning and placement team meetings of the local school board, the parent's lawyer may communicate with the school board employees present at the meeting. Conn. State Bar Ass'n Op. 87-15 (1988).
Both courts and bar associations troubled by the potential breadth of the "authorized by law" exception have imposed common sense constraints on ex parte contacts in order to give government attorneys some notice of the contact. Consistent with Opinion 69, in Frey v. Department of Health and Human Services, 106 F.R.D. 32 (E.D.N.Y. 1985) and Morrison v. Brandeis University, 125 F.R.D. 14 (D. Mass. 1989), ex parte interviews were conditioned on counsel's disclosing to the employee immediately (at the initial contact) counsel's position and the purpose of the contact.
The Committee notes that, in balancing the First Amendment rights at issue with the government's right to the protections of Rule 4.2 or DR 7-104(A)(1), several courts have permitted ex parte contacts conditioned upon a form of "Miranda" warning. E.g., Frey at 38; Morrison at 19-29 (the person to be contacted was to be told he or she had the right to refuse the interview or to have the interview conducted in the presence of the public body's attorney or his or her personal attorney).
The Committee also notes that several bar associations have taken a slightly different tack and required prior or subsequent notice to the government's attorney of the ex parte contact. For example, the Association of the Bar of the City of New York Committee on Professional and Judicial Ethics has reconciled the competing concerns by permitting counsel to send his or her written comments about an agency decision directly to the government decisionmaker, but requiring him or her to notify the official that the matter is in litigation and he or she may want to consult counsel before responding, and providing a copy of the letter to the government's counsel. Op. 1991-4 (1992). See Ethics Comm. of the State Bar of S.D. Op. 90-7 (1990) (written contact with government official permitted so long as notice and copy of communication given to government counsel; however, in person or telephone contact with government officials is unethical); Ass'n of the Bar of the City of N.Y. Comm. on Professional and Judicial Ethics, Formal Op. 1988-8 (1988).
In summary, the First Amendment right to petition one's government should not be read into every contact with a government employee, which would otherwise negate Rule 4.2 in every instance. See, e.g., ABA Informal Op. 1377, supra; Va. State Bar Ass'n Op. 777 (1986); Me. State Bar Ass'n Op. 90 (1988). In general, as stated above, when the government is a party it is entitled to the benefits of Rule 4.2.
Nonlitigation Settings
As has been stated above, Rule 4.2 is not limited to formal adversarial settings such as litigation, arbitration or adjudicative proceedings before an administrative body. In any transaction - such as the negotiation of a contract or a lease with a government entity; or a public meeting, hearing, or colloquy with public officials or employees that could lead to litigation - Rule 4.2 remains applicable. Because the Rule applies to non-adversarial or pre-adversarial situations does not mean, however, that the ex parte contact is necessarily prohibited. For example, the "authorized by law" exception generally applies to an attorney's communications with public officials at a public meeting. See Ohio S. Ct. Bd. of Comm'rs on Grievances and Discipline, Op. 92-7 (1992). It is important to keep in mind that regardless of the setting, for the ex parte contact to be prohibited, all of the elements of the Rule discussed above and in Opinion 69 must be met.
Judicial and Quasi-Judicial Settings
Another setting in which the issue of ex parte contacts with a government official can arise is when an attorney appears before a decisionmaker, whether an individual or a public body, in a judicial or quasi-judicial setting. Examples of such situations would include a zoning decision before a city council or board of county commissioners or a licensing or permit application to a federal, state, or local body or administrative agency. In these settings, Rule 4.2 is applicable and, in addition, Rule 3.5(b) of the Colorado Rules of Professional Conduct comes into play. Rule 3.5(b) states: "A lawyer shall not . . . communicate ex parte with [a judge or other official] except as permitted by law." See N.J. Ethics Op. 583 (1986) (deputy attorney general prosecuting matter before agency may not contact head of agency ex parte to determine acceptability of settlement to agency). Due process protections dictate a similar result. See Weissman v. Board of Education of Jefferson County School District No. R-1, 547 P.2d 1267, 1276 (Colo. 1976).
Officials of an agency governed by the state Administrative Procedure Act who are acting in a judicial or quasi-judicial capacity are prohibited from receiving or considering ex parte materials or representations. Colo. Rev. Stat. 24-4-105(14). See Wells v. Del North School District C-7, 753 P.2d 770, 772 (Colo. App. 1987). An attorney's ex parte contact in such a situation is both an ethical violation and, potentially, cause for invalidating the agency's decision. See, e.g., Peoples Natural Gas Division of Northern Natural Gas Co. v. Public Utilities Commission, 626 P.2d 159, 163-64 (1981). In the context of agency rulemaking or adjudications governed by the Administrative Procedures Act, 5 U.S.C. 551, et seq., Congress has restricted ex parte communications in "on the record" proceedings. 5 U.S.C. 557(d)(l). Therefore, in these circumstances, Rule 4.2's "authorized by law" exception is not applicable.
The Validity of a Blanket Prohibition on Government Employee's Contact with Opposing Counsel
The Committee is aware of instances where government bodies have provided directives to their employees not to discuss matters in litigation or administrative proceedings with counsel for the opposing party. While, at first blush, such an admonition may appear perfectly reasonable and within the bounds of Rule 3.4(f) of the Colorado Rules of Professional Conduct,(5) several courts and state ethics opinions have found such "gag" rules to be ethically impermissible either on the grounds of violating First Amendment rights or because such a gag would preempt counsel's right to approach certain employees ex parte. As a general matter, such "gag" rules are impermissible. Limited exceptions do exist where, for example, a public employee speaks out on matters of personal interest, as opposed to matters of public concern. See Connick v. Myers, 461 U.S. 138 (1983).
In Vega v. Bloomsburg, 427 F. Supp. 593 (D. Mass. 1977), the Deputy Commissioner of the Department of Public Welfare issued a memorandum to his employees responsible for the Medicaid program at issue, instructing them not to meet with plaintiffs' attorneys without specific approval of the Department's attorney and warning them that disciplinary action could be imposed for violating the admonition. The Court found the memorandum violative of the First Amendment rights of those department employees who wished to speak with plaintiffs' counsel. See Rodriguez v. Percell, 391 F. Supp. 38 (S.D.N.Y. 1975) (directive by Chancellor of New York City school district pursuant to city charter prohibiting teachers from making statements in suit on behalf of Spanish-speaking children violated First and Fourteenth Amendments); Ohio S. Ct. Bd. of Comm'rs on Grievances and Discipline, Op. 92-7 (1992) (a government department, agency or its counsel may not issue instructions to its employees forbidding communication with an attorney representing an adverse party unless the government's attorney is present because of the imposition on the employees' First Amendment rights). Cf. Wright v. Group Health Hospital, 103 Wash. 2d 192, 691 P.2d 564 (Wash. 1984) (hospital corporation cannot prohibit current employees from participating in ex parte interviews with plaintiffs' attorneys based upon DR 7-104(A)(1)).
Conclusion
When the organizational party is a government entity, Rule 4.2's prohibition on ex parte contacts is both broader and narrower in scope than the Comment to the Rule might suggest. Notwithstanding the Comment's statement that the "authorized by law" exception permits ex parte contacts with government officials about a controversy with a government agency, in general, Rule 4.2 prohibits 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 the matter. Nevertheless, because of the "authorized by law" exception, the Rule does not prohibit ex parte contacts with any government official or employee acting in a legislative or rulemaking capacity, except when specifically prohibited by law, nor does it prohibit contact with government employees or officials who are managerial employees only in the limited sense that their statements could be deemed admissions against the government organization under the applicable rule of evidence. In addition, where a specific statute, rule or ordinance permits contact with the government employee or official, counsel may proceed ex parte without notifying the government's counsel.
1. At various places throughout the Opinion, the Committee has chosen to use the term "organization" rather than "party" to describe generally the type of governmental entity discussed in this Opinion. This usage underscores the Opinion's scope, which goes beyond the litigation or otherwise formal adjudicative setting and addresses the full panoply of situations where a person or entity deals with a government body through counsel. See infra.
2. An example of such a law would be Rule 4 of the Colorado or Federal Rules of Civil Procedure, which permit service directly on a party.
3. The Committee believes that the ABA's use of the phrase "the right of a party" presupposes that counsel to such party has the same right to speak with government officials on behalf of his or her client, as agent for that party; otherwise, the statement would be merely an aside in an ethics rule binding only on lawyers.
4. There appears to be little case law concerning the right to petition one's government; nonetheless it is a freedom protected by the Bill of Rights and the Supreme Court has been loathe to impute to any legislative or rulemaking body, executive agency or court an intent to curtail this freedom. See, e.g., California Motor Transport Co. v. Trucking Unlimited, 404 U.S. 508, 510 (1972); Eastern Railroad Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127, 138 (1961).
5. Rule 3.4(f) states: A lawyer shall not . . . (f) request a person other than a client to refrain from voluntarily giving relevant information to another party unless: (1) the person is a relative or an employee or other agent of a client; and (2) the lawyer reasonably believes that the person's interests will not be adversely affected by refraining from giving such information.
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