December 10, 2010
A lawyer may not communicate with officers, directors, or managers of State Agency, or State Agency employees who are directly involved in the matter, and other State Agency employees whose acts or omissions in connection with the matter can be imputed to State Agency about the subject matter of a specific controversy or matter on which a lawyer knows or has reason to know that a governmental lawyer is providing representation unless the agency's lawyer first consents to the communication. A lawyer may communicate with other agency employees who do not fall within the above categories, and may communicate with employees who are considered represented by State Agency’s lawyer on subjects unrelated to those matters in which the agency lawyer is known to be providing representation. The lawyer may be required to identify himself or herself as a lawyer who is representing a party in making those contacts. Lawyers communicating with agency personnel are cautioned not to either purposefully or inadvertently circumvent the constraints imposed by Rule 4-4.2 and Rule 4-4.3 in their communications with government employees and officials. If a lawyer does not know or is in doubt as to whether State Agency is represented on a particular matter or whether particular State Agency’s employees or officials are represented for purposes of the rule, the lawyer should ask State Agency’s lawyer if the person is represented in the matter before making the communication.
[Note: This opinion was approved as revised by the Board of Governors at its December 10, 2010 meeting.]
RPC: 4-4.2, 4-4.3
Opinions: 78-4, 87-2
A member of The Florida Bar has requested an advisory ethics opinion. The operative facts as presented in the Inquiring Lawyer’s letter are as follows.
Inquirer’s firm represents financial institutions in applying for charter approvals and other necessary approvals with State Agency and federal regulatory agencies, and also in regulatory issues that may arise with such agencies. Occasionally, Inquirer’s firm may represent clients in administrative or judicial proceedings in which State Agency is the opposing party.
Inquirer’s firm currently is representing four clients in administrative or judicial proceedings involving State Agency which handles state regulatory matters involving the licensing, examination, and supervision of financial institutions. Legal counsel for State Agency has advised Inquirer’s firm that all communications to any employee of State Agency from any lawyer in the firm pertaining to any of the firm's clients must go through the legal department of State Agency, even when such client matters are not connected in any way to the four litigation cases. The Inquirer asks whether Inquirer’s firm is prohibited by Rule 4-4.2 from directly communicating with all employees of State Agency, when such communications do not pertain to any adversarial proceeding between the firm's clients and State Agency.
Rule 4-4.2 of the Rules of Professional Conduct of The Florida Bar is the governing ethical standard:
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. Notwithstanding the foregoing, an attorney may, without such prior consent, communicate with another's client in order to meet the requirements of any court rule, statute or contract requiring notice or service of process directly on an adverse party, in which event the communication shall be strictly restricted to that required by the court rule, statute or contract, and a copy shall be provided to the adverse party's attorney.
The Comment to the rule states, in relevant part:
This rule contributes to the proper functioning of the legal system by protecting a person who has chosen to be represented by a lawyer in a matter…and the uncounseled disclosure of information relating to the representation.
This rule does not prohibit communication with a represented person, or an employee or agent of such a person, concerning matters outside the representation. For example, the existence of a controversy between a government agency and a private party, or between 2 organizations, does not prohibit a lawyer for either from communicating with nonlawyer representatives of the other regarding a separate matter. Parties to a matter may communicate directly with each other, and a lawyer is not prohibited from advising a client concerning a communication that the client is legally entitled to make, provided the client is not used to indirectly violate the Rules of Professional Conduct. Also, a lawyer having independent justification for communicating with the other party is permitted to do so. Permitted communications include, for example, the right of a party to a controversy with a government agency to speak with government officials about the matter.
In the case of a represented organization, this rule prohibits communications with a constituent of the organization who supervises, directs, or regularly consults with the organization's lawyer concerning the matter or has authority to obligate the organization with respect to the matter, or whose act or omission in connection with that matter may be imputed to the organization for purposes of civil or criminal liability...
The prohibition on communications with a represented person only applies in circumstances where the lawyer knows that the person is in fact represented in the matter to be discussed. This means that the lawyer has actual knowledge of the fact of the representation; but such actual knowledge may be inferred from the circumstances. Thus, the lawyer cannot evade the requirement of obtaining the consent of counsel by closing eyes to the obvious.
Several issues must be considered in responding to the requested advisory opinion. The first is whether all persons within an organization are deemed to be represented by the organization's counsel for the purposes of this rule. As indicated in the comments to Rule 4-4.2 quoted above, a lawyer would be ethically precluded from communicating with employees of governmental entities or agencies who are considered represented by the government’s lawyer for purposes of this rule with regard to matters on which the agency is known to be represented by a lawyer unless the entity's lawyer consents to the communication.
Florida Ethics Opinion 78-4 addresses this sometimes difficult question of who within an organizational structure is considered to be a "party" within the meaning of the rule. (Opinion 78-4 was decided under the old Code of Professional Responsibility, which prohibited ex parte contacts with a "party" represented by counsel. While the current rule refers to a "person" represented by counsel, the rationale of the opinion nevertheless remains applicable here.) Attempting to balance one party's need to conduct pre-suit investigation by interviewing certain members of the opponent corporation against the organization's interest in preventing the unadvised disclosure of particular information, the Committee declined to adopt a rule that would prohibit all contacts with organizational employees no matter how removed from the conduct in question. Instead, the Committee found ex parte communications improper only with regard to employees who are “officers, directors or managing agents” but not other employees “unless they have been directly involved in the incident or matter giving rise to the investigation or litigation.” In Florida Ethics Opinion 87-2, the Committee extended the rationale of Opinion 78-4 to government entities and noted that the Comment to Rule 4-4.2, in addition to precluding direct contact with an agency's management, also would preclude unauthorized communications with persons whose acts or omissions in connection with the matter could be imputed to the organization.
Thus, regarding a matter in which State Agency is represented, Inquirer and the firm must obtain the consent of State Agency’s lawyer before communicating with State Agency’s officers, directors or managers, or employees who are directly involved in the matter, or with public officials or employees whose acts or omissions in connection with the matter can be imputed to State Agency.
The second issue that must be addressed is when the prohibition arises. Rule 4-4.2 is not limited to matters in litigation and may extend to matters on which litigation has not yet commenced, as well as to specific transactional or non-litigation matters on which the agency’s lawyer is providing representation. Pursuant to the language of the Comment, however, direct communications with represented persons, including protected employees, on matters other than specific matters for which the agency lawyer is providing representation are permissible. See Florida Ethics Opinion 94-4. Moreover, the Comments limit the scope of the Rule to those circumstances where “the lawyer knows that the person [agency] is in fact represented in the matter to be discussed.” Thus, an agency lawyer need not enter a formal appearance in order to “in fact” represent his or her agency on a particular matter, nor must the agency lawyer give other lawyers formal notice of such representation. However, as suggested by the Comment, there must be actual knowledge by the non-agency lawyer of representation by the agency lawyer on the matter being discussed in order for Rule 4-4.2 to apply; but such actual knowledge may be inferred from the circumstances. As a consequence, Inquirer and the firm are not precluded from communicating with employees or any other employee of State Agency regarding subjects unrelated to those specific matters on which the representation of the State Agency’s lawyer is known to Inquirer and the firm. In this instance, however, the Inquirer or members of the firm may be required to identify himself or herself as a lawyer representing a client to comply with Rule 4-4.3 Dealing with Unrepresented Persons.
The final question that must be resolved is whether, because State Agency has a general counsel, the general counsel is effectively representing the agency on all matters, merely by virtue of being in the continuous employ of the agency, thus preventing all communications with the State Agency’s public officials and employees on all subjects. The Comments described above suggest that this is not the intent of the Rule. In addition, the Comments to the Rule expressly recognize that lawyers with an “independent justification” may communicate with a represented party.
Florida Ethics Opinion 78-4 also addresses this issue. The Professional Ethics Committee addressed two questions:
(1) When is a party sufficiently “represented by a lawyer” to require application of DR 7-104(A)(1) so as to prohibit communication with the party and, in specific, must litigation have commenced for the DR to apply? (2) Where a potential suit or pending suit involves a corporation, who in the corporate structure is considered to be a “party” within the meaning of the (Rule)?
The Committee’s unanimous answer to the first question is that representation of a party commences whenever an attorney-client relationship has been established with regard to the matter in question, regardless of whether or not litigation has commenced. In the opinion of the majority of the Committee, in the case of even an individual or corporation that has general counsel representing the individual or corporation in all legal matters, the DR would require communication on the matter to be with the party’s attorney.
Florida Ethics Opinion 87-2 extended the rationale of Opinion 78-4 to government agencies, as discussed above, and made no exception for contacts with personnel of government agencies.
In view of the Comments’ clarification that there must be knowledge that the other party is represented in a particular matter and that the bar on communications does not apply to matters outside the representation, Rule 4-4.2 should not be read to bar all communications with government officials and employees merely because the government entity retains a general counsel or other continuously employed lawyers. Conversely, the rule cannot be read to allow lawyers representing a client to approach represented public officials and employees to make inquiry about a matter, the status of a matter, or obtain statements about a matter without affording such officials and employees an opportunity to discuss with government counsel the advisability of entertaining the communication. If the lawyer representing a client knows that the public official or employee is represented in the matter, the lawyer must obtain the prior consent of the government lawyer. If the lawyer representing a client does not know that the public official or employee is represented in a matter, the lawyer should inquire whether the person is represented in the matter. In all instances, to comply with other provisions of the Rules, the lawyer must identify himself or herself to the public official or employee as a lawyer who is representing a client. Rule 4-4.3 and Florida Ethics Opinion 78-4.
In conclusion, Rule 4-4.2, as clarified by its Comments, prohibits communications with officers, directors, or managers of State Agency, or State Agency employees who are directly involved in the matter, and other State Agency employees whose acts or omissions in connection with the matter can be imputed to State Agency about the subject matter of a specific controversy or matter on which a lawyer knows or has reason to know that a governmental lawyer is providing representation unless the agency's lawyer first consents to the communication. The Rule does not prohibit a lawyer from communicating with other agency employees who do not fall within the above categories, nor does it prohibit a lawyer from communicating with employees who are considered represented by State Agency’s lawyer for purposes of this rule on subjects unrelated to those matters in which the agency lawyer is actually known to be providing representation. The lawyer may be required to identify himself or herself as a lawyer who is representing a party. Rule 4-4.3 and Florida Ethics Opinion 78-4.
Lawyers communicating with agency personnel must be cautioned not to either purposefully or inadvertently circumvent the constraints imposed by Rule 4-4.2 and Rule 4-4.3 in their communications with government employees and officials. The right to communicate directly with agency personnel about matters unrelated to those on which the agency lawyers are providing specific legal representation must not be used as a vehicle for engaging in communications that are barred by the rule. If the Inquirer does not know or is in doubt as to whether State Agency is represented on a particular matter or whether particular State Agency’s employees or officials are represented for purposes of the rule, Inquirer should ask State Agency’s lawyer if the person is represented in the matter before making the communication. In all instances, the Inquirer may be required to identify himself or herself as a lawyer who is representing a client.