The Florida Bar
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OPINION 90-4
(July 15, 1990)
Florida Rule 4-4.2 (communication with person represented by counsel) contains no exception for activities of U.S. Department of Justice attorneys.

RPC: 4-4.2
Opinions: 78-4, 87-2, 88-14; Alabama Opinion 89-108
Cases: Suarez v. State, 481 So.2d 1201 (Fla. 1985); United States v. Hvass, 355 U.S. 570, 78 S.Ct. 501 (1958); United States v. Klubock, 639 F.Supp. 117 (D.Mass. 1986), aff'd 832 F.2d 664 (1987)
Misc: Supremacy Clause, U.S. Constitution; Rule 1-3.2(a), Rules Regulating The Florida Bar; ABA Model Code DR 7-104(A)(1); ABA Model Rule 4.2; Rule 4(K)(1), General Rules of the U.S. District Court for the Northern District of Florida; Rule 2.04(c), Rules of the U.S. District Court for the Middle District of Florida; Rule 4B., Rules of Disciplinary Enforcement for the Southern District of Florida

A member of The Florida Bar has requested the Committee's view regarding the applicability of Rule 4-4.2 to attorneys employed by the United States Department of Justice. The member's inquiry was prompted by a 1989 memorandum issued by the United States Attorney General to all Justice Department litigators. In that memorandum, the Attorney General expressed his belief that DR 7-104(A)(1) of the ABA Model Code of Professional Responsibility and its successor, Rule 4.2 of the ABA Model Rules of Professional Conduct, should not be read in an "expansive" way that would prohibit certain Justice Department communications with suspects or witnesses who are represented by counsel. The memorandum stated that the issue of the applicability of these rules has arisen in primarily two situations: (1) covert contacts (or, less frequently, overt interviews) with a suspect after the suspect has retained counsel; and (2) multiple representation situations (i.e., where a single attorney purports to repr esent either several individuals or a corporation and all of its employees).

The memorandum advances two primary reasons why a state's version of DR 7-104(A)(1) or Rule 4.2 should not apply to Justice Department attorneys in the above situations. First, the memorandum asserts that such communications are expressly excepted from those rules because they are "authorized by law." Second, the memorandum states that the Supremacy Clause of the United States Constitution prohibits states from interfering with Justice Department attorneys in the performance of their duties.

The relevant Florida Rule of Professional Conduct is Rule 4-4.2, Rules Regulating The Florida Bar, which 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.

Florida's Rule 4-4.2 differs in two significant respects from the corresponding ABA Model Rule. The Florida rule governs communication with "a person" represented by counsel, while the ABA rule applies to communication with a represented "party." (The Report of the Florida Bar Special Study Committee on the Model Rules of Professional Conduct indicates that this change was a deliberate one, designed to broaden the scope of the rule.) And, more importantly in the Committee's view, the Florida rule does not contain the "or is authorized by law" exception that is found in the ABA rule.

The Committee is of the opinion that Rule 4-4.2 applies to all members of The Florida Bar (as well as to those nonmembers practicing in Florida pursuant to Rule 1-3.2(a)), including Justice Department attorneys in the situations described in the memorandum. Rule 4-4.2 contains no exceptions for particular categories of attorneys and the Committee declines to read into the rule any such exceptions. Moreover, the Supreme Court of Florida has stated that the rule applies to the conduct of prosecutors in criminal cases. See Suarez v. State, 481 So.2d 1201 (Fla. 1985).

The two arguments advanced in the memorandum do not compel the Committee to reach a different conclusion. As noted, Florida Rule 4-4.2 does not contain the exception for communications "authorized by law" that is relied upon so heavily in the memorandum. Furthermore, the Supremacy Clause argument is not persuasive for two reasons. In the federal district courts for all three Florida districts (Northern, Middle, and Southern Districts), the Florida Rules of Professional Conduct govern the conduct of attorneys admitted to those federal bars. See Rule 4(K)(1), General Rules of the U.S. District Court for the Northern District of Florida; Rule 2.04(c), Rules of the U.S. District Court for the Middle District of Florida; Rule 4B., Rules of Disciplinary Enforcement for the Southern District of Florida. Because Florida Rule 4-4.2 has been adopted by those federal courts, it is considered federal law. See United States v. Hvass, 355 U.S. 570, 574-75, 78 S.Ct. 501, 504 (1958). Thus there can be no Supremacy Clause problem in applying Rule 4-4.2 to the activities of Justice Department attorneys practicing in Florida.

Additionally, the Committee is of the opinion that the Supremacy Clause argument is unpersuasive for the reason expressed by the federal district court in United States v. Klubock, 639 F.Supp. 117, 126 (D.Mass. 1986), aff'd 832 F.2d 664 (1987). In evaluating a claim by federal prosecutors that a state court rule was invalid under the Supremacy Clause, the court stated that regulation of the legal profession is a proper exercise of state power and that a Supremacy Clause problem would arise only if the state's rule regulated the federal attorneys' conduct in a manner that created an actual conflict with some provision of federal law.

The Committee acknowledges the potential problems raised in the memorandum, but believes that Rule 4-4.2 can be applied in a manner that minimizes or eliminates those concerns. In covert investigation situations, for example, applying the rule according to its express terms should not impede most covert investigations. A Justice Department attorney's knowledge that a person is represented in connection with a particular matter is required before the rule is triggered. In the case of an undercover investigation, it seems unlikely that the typical suspect will be represented with respect to that particular matter because at that time he or she usually will not be aware that there is a "matter." The memorandum also raises the concern that career criminals will retain "house counsel" in an effort to use Rule 4-4.2 to frustrate investigations. The Committee believes that a relatively small number of criminals have "house counsel" on permanent retainer; with respect to those few who do, it c an be argued that the rule would not be triggered until the suspect referred the particular matter in question to his or her "house counsel." (In this respect, the committee notes that its Opinion 78-4, concerning communication with someone's general counsel, should be limited to the civil context.)

Regarding multiple representation situations, the Committee's previous opinions clearly indicate that not all corporate employees are considered to be represented by the corporation's counsel for purposes of Rule 4-4.2. See Opinions 78-4; 87-2. See also Comment to Rule 4-4.2; Opinion 88-14. With regard to conflict of interest situations (e.g., where a corporate employee believes that corporate counsel is not representing his or her interests, or where one of several individuals represented by a single attorney believes that the attorney is not representing his or her interests), the Committee agrees with the position expressed by the Alabama State Bar Disciplinary Commission in its Opinion 89-108. In that opinion, the Commission concluded that it was not unethical for a federal prosecutor, despite corporate counsel's objections, to communicate directly with a corporate officer about possible criminal conduct in which the officer and the corporation had engaged after the officer's perso nal attorney had initiated contact with the prosecutor and had given permission for the communication.

This opinion was adopted by unanimous vote of the Committee.



[Revised: 08-24-2011]