Formal Opinion 1988-8

August 24, 1988

ACTION: Formal Opinion

OPINION:

The inquirer represents a client who has a dispute with a governmental agency. The agency has retained private counsel for the matter. The inquirer has requested the opportunity to submit comments to the head of the agency regarding the agency’s exercise of its authority in the matter. The government’s private counsel, however, advised the inquirer that a staff attorney for the government agency objected to the request, taking the position that such communication would constitute an ethical violation. See DR 7-104; accord EC 7-18; ABA Model Rule 4.2. The staff attorney indicated that the head of the agency was acting in a private capacity in connection with this matter, although he was authorized by statute to act in such matters and he has utilized paid civil servants to administer the relevant program.

The inquirer asks whether he may contact the head of the governmental agency to request that, with respect to his client’s matter, the agency exercise its discretionary authority favorably. The inquirer intends to notify private counsel of any such contact and to provide counsel with copies of whatever papers he submits. He notes that another purpose of this communication will be to protest the position that private parties should not contact the agency when the latter has retained private counsel. The dispute with the agency consists of, and the inquirer wishes to submit comments concerning, the agency’s denial of specific claims regarding his client’s matter and, in general, its policy regarding the denial of pending and future claims under the program.

To the extent that the proposed communication concerns the subject matter of the representation, the inquiry is governed by DR 7-104(A)(1), which states:

During the course of his representation of a client a lawyer shall not . . . communicate or cause another to communicate on the subject of the representation with a party he knows to be represented by a lawyer in that matter unless he has the prior consent of the lawyer representing such other party or is authorized by law to do so.

Initially, we note that the determination of whether the head of the agency is acting in a private or an official capacity is one that the inquirer must make, as it is a question of law and fact beyond our jurisdiction.

As a general matter, DR 7-104(A)(1) permits direct communications with an adverse party either with the consent of that party’s counsel or when such communications are authorized by law. The comment to ABA Model Rule 4.2, which Rule is substantially identical to DR 7-104(A)(1), states that “[c]ommunications authorized by law include . . . the right of a party to a controversy with a governmental agency to speak with government officials about the matter.” In addition, we note that, although footnotes to the Model Code are intended merely to relate the Code’s provisions to other sources (see ABA Model Code of Professional Responsibility, Preamble and Preliminary Statement n.1), footnote 74 to DR 7-104 quotes what is now codified as California Rule 7-103. That Rule is similar to DR 7-104, and explicitly permits “communications with a public officer, board, committee or body.”

In N.Y. City 80-46, we specifically chose not to address the scope of DR 7-104(A)(1) where a governmental party is involved. In N.Y. State 160 (1970), however, the New York State Bar Association Committee on Professional Ethics acknowledged that, because a governmental unit has the same rights and responsibilities in a controversy as does any other party, once there is an indication that the government has designated counsel for a particular matter, “all communications concerning that matter must thereafter be made with the designated counsel except as provided by law.” (Emphasis added.) In a subsequent opinion, the State Bar Committee determined that, because of the “overriding public interest” in providing the public with access to the government, DR 7-104(A)(1) should be read implicitly to create an exception “to its otherwise broad prohibitions” when a public body is involved. Accord C. Wolfram, Modern Legal Ethics 614-15 (1986) (“Constitutional guarantees of access to government . . . seem hostile to a rule that prohibits a citizen from access to an adversary governmental party without prior clearance from the governmental party’s lawyer.”). In that case, however, the inquiring attorney was permitted to speak with a member of a public body who technically was not considered an “adverse party,” given that that person voted against the decision that was contested. In addition, the opinion indicates that the minority board member voluntarily chose to communicate with the attorney.

In our opinion, should the inquirer conclude that the head of the agency is acting in an official capacity, then pursuant to the “authorized by law” exception to DR 7-104, he may submit comments to the head of the agency concerning the subject matter of the representation, provided that he notifies the government’s private counsel of the intended communication and that he provides counsel with copies of the submissions. In so deciding, we have balanced carefully the competing interests of providing the government with the same protections that are afforded to other parties with the need to ensure relatively unrestricted public access to government. See Note, DR 7-104 of the Code of Professional Responsibility Applied to the Government “Party,” 61 Minn. L. Rev. 1007, 1033 (1977). Accord New Mexico Bar Ass’n, Opinions, reprinted in 9 State B. N.M. Bull. 391 (1971) (deciding that DR 7-104 is satisfied when an attorney notifies in advance opposing counsel of his intention to communicate with the opposing party). If, however, the inquirer concludes that the head of the agency is acting in a private capacity, then he may not communicate with that person, unless he has the consent of opposing counsel or is authorized by law to do so.