Ethics Hotline & Opinions

ETHICS DOCKET NO. 2009-09

MARYLAND STATE BAR ASSOCIATION, INC.

COMMITTEE ON ETHICS

ETHICS DOCKET NO. 2009-09

Ex Parte/ Direct Contact with Government Employees

 

Your inquiry was considered by the Committee on Ethics of the Maryland State Bar Association and I have been assigned to respond on its behalf.

You ask the Committee to answer several questions regarding contact with agencies, employees and officials of state and local government with whom you have contact in the course of representing various clients.

According to your inquiry, you were an assistant attorney general assigned to a particular State Agency in Maryland. You left that position more than 15 years ago, but continue to have many personal friends at that agency.

Now in private practice, a significant portion of your practice involves assisting clients who are dealing with government agencies, helping them navigate red-tape, agency procedures, approvals, etc. You also represent clients in litigation where a government agency is an adverse party, such as condemnation (land acquisition) cases. With one exception (that is the heart of the ethics question), in every instance that you have contacted a county attorney or state attorney on a routine administrative matter, such as a permit or approval, request for public information about a public project, request for public documents and the like, you have been told that you should deal with the agency directly as there is no pending case assigned to an attorney. Based on this previous experience, in routine matters, it is your habit to contact the agency employee or official you need to speak with directly. If it is a particularly sensitive matter or is somehow out of the ordinary, it is your practice to first contact a senior supervising attorney and wait for direction.

With respect to the State agency to which you were formerly assigned, you have been asked by its current counsel to take a different approach. That attorney has asked that even with respect to routine administrative matters involving that agency where there is no pending litigation or case, any time you contact an agency official or employee by mail or email, you should also send a copy to their counsel’s office.

You currently represent an out-of-state business which owns property in Maryland that is affected by a proposed state government project. There is a state project manager assigned who is the designated person for citizens and local officials to contact for information concerning the project. You sent an email to that project manager asking for information concerning the status of the project – a routine request – and included a request for public information pertaining to the project relating to your client’s property. In the email, you suggested that the project manager may want to consult with agency counsel before responding to your request, and you copied agency counsel on the email.

In response, you received a harshly worded reply from an agency attorney, which was copied to state agency employees and officials of county agencies. In this reply, the agency attorney took the position that, because you are an attorney, it is unethical for you to make any direct contact or communication with any official or employee at that agency, as that agency is represented by the Attorney General’s Office. Further, you were informed that you are not permitted to communicate with any independent contractor or consultant that may be under contract with that State agency on any matter whatsoever.

You have indicated that you believe that you are acting in conformance with the standards of ethics and that other attorneys with similar types of practice have a similar method of operating. They routinely deal directly with the public official or employee, unless that employee requests they contact a specific attorney assigned to the matter. Typically, you suggest, agency counsel is not notified unless there is a pending case. You describe this as common practice.

Based on these facts, you have asked:

(1) whether it was unethical for you (or any attorney) to contact the project manager for public information or public documents about a routine matter, where there is no case or litigation; and/or whether you are required to contact the Attorney General’s office to first obtain permission to talk to a public official or employee, no matter what the matter or issue or which agency might be involved ?

(2) Assuming the answer to (1) is that it is unethical, does the same answer apply to communication by an attorney to independent contractors to a state agency(such as construction contractors or design consultants), where the independent contractors were procured by the agency through state procurement process and not hired by the Attorney General’s office to assist them in a litigation matter ?

(3) If the answer to (1) is that the contacts were ethically permitted, and that attorneys are not required to clear all communications/contacts with agency personnel on routine matters with agency counsel, is agency counsel acting ethically or in a chilling manner in trying to impose a policy that limits my ability to help clients contact public officials?

The questions you have raised are addressed by Rule 4.2 of the Maryland Rules of Professional Conduct.

The Ethics Committee has previously issued an Opinion which concluded that ex parte contact with former government employees was not per se precluded by Rule 4.2. SeeDocket Number 1990-01. However, none of our previous opinions specifically addresses the questions you have raised in your inquiry. Therefore, we will discuss them here.

The current text of Rule 4.2 provides that:

 

(a) Except as provided in paragraph (c), in representing a client, a lawyer shall not communicate about the subject of the representation with a person who the lawyer knows is represented in the matter by another lawyer unless the lawyer has the consent of the other lawyer or is authorized by law or court order to do so.

 

(b) If the person represented by another lawyer is an organization, the prohibition extends to each of the organization’s (1) current officers, directors, and managing agents and (2) current agents or employees who supervise, direct, or regularly communicate with the organization’s lawyers concerning the matter or whose acts or omissions in the matter may bind the organization for civil or criminal liability. The lawyer may not communicate with a current agent or employee of the organization unless the lawyer first has made inquiry to ensure that the agent or employee is not an individual with whom communication is prohibited by this paragraph and has disclosed to the individual the lawyer’s identity and the fact that the lawyer represents a client who has an interest adverse to the organization.

 

(c) A lawyer may communicate with a government official about matters that are the subject of the representation if the government official has the authority to redress the grievances of the lawyer’s client and the lawyer first makes the disclosures specified in paragraph (b).

(Emphasis added). Based on the facts as you have presented them to us, it appears that the contacts with the Agency that you have described would fall under 4.2(b) and (c).

In answer to your first question, based on your previous experience with the AG’s office, and the fact that you copied counsel on your email to the agency employee, the email message you sent does not appear to violate the Rules of Professional conduct.

You have also asked whether going forward, the Rules of Professional Conduct would require you to contact the AG’s office before making routine contact to an agency employee or officer. The first question you must answer for yourself is whether the matter that you are attempting to contact the government employee or agency about is “the subject of the representation with a person who the lawyer knows is represented in the matter by another lawyer.” It seems based on your previous practice as selfdescribed, you have interpreted the Rule to prohibit contact only when there is actual pending litigation or where a specific AG has been identified.

However, in our view, the Rule should not be read so narrowly. The Rule, unlike others, does not restrict itself to matters of representation that are pending in court.  1  Therefore, if you determine the matter is one, whether in court or not, which is the subject of representation, you should then proceed to 4.2(c).

Under 4.2(c), even where an agency is represented, counsel are permitted to have direct contact with a government official, if the official “has the authority to redress the grievance of the lawyer’s client” and the lawyer discloses to the individual “the lawyer’s identity and the fact that the lawyer represents a client who has an interest adverse to the organization.”

Therefore, assuming that the person you are contacting has authority over the matter, and that you disclose your purpose for contacting the individual agency employee, and your client’s interests, your contact would be permitted under 4.2(c). As such, in answer to your first question, prior contact of the AG’s office would not be required by 4.2.

You have also asked whether any prohibitions on contacts would apply to independent contractors (generally in the design and construction industry) of the Agency. The answer to that question depends on whether or not the contractor is a “represented party” with respect to the subject of the representation. Based on the language of the Rule, and various reported cases, that question would depend on a variety of factors including whether the agent or contractor was privy to privileged information, regularly communicates/d with counsel, or whether the agent or contractor’s statements could bind or impute liability to the Agency.2 We therefore believe that presents a legal question and not an ethical one: i.e, whether a person employed as an independent contractor or agent of a government agency is a represented party under the circumstances you describe. Therefore, we decline to address that issue, but direct you to the case law which may provide you with some guidance.

The question you have not asked, but which is implied by your inquiry, is whether, despite the fact that your contact with a particular agency employee is not specifically prohibited by 4.2, you have to refrain from direct contact with an Agency employee after providing the disclosures require by 4.2(b), and/or after being specifically so instructed by the Agency’s counsel. As we understand the situation you have described, you made contact with an Agency employee that was permitted by 4.2 via email, and copied agency counsel on that communication. In response, that agency counsel asked that you go through counsel with respect to any further related inquiries.

In our view, based on the language of 4.2 and its Comments, direct contact is sometimes permitted with government employees. However, once an attorney for the Agency is made aware of that contact, and tells you that a particular department or individual at the Agency is represented, and instructs you to not have any direct communication without counsel, you are required to abide by those instructions.3

However, as the Rule suggests, if and when a dispute arises over such issues, and you feel that such instructions have been given by opposing counsel in error, you may seek redress via a Court order permitting contact. See 4.2(a).

The Committee hopes it has addressed your inquiry and thanks you for your interest. Our opinions are available on line at www.msba.org.

 

1  For example, Comment [5] specifies that the Rule ” applies to communications with any person, whether or not a party to a formal adjudicative proceeding, contract, or negotiation, who is represented by counsel concerning the matter to which the communication relates. The Rule applies even though the represented person initiates or consents to the communication. A lawyer must immediately terminate communication with a person if, after commencing communication, the lawyer learns that the person is one with whom communication is not permitted by this Rule.” Thus, it clearly extends beyond matters in litigation, and would also cover matters including or akin to a formal adjudicative proceeding, contract, or negotiation.

 

 

2  While the Maryland Court of Appeals has not resolved the issue, the Federal District Court of Maryland has issued several opinions addressing contact with former employees or agency. See, Davidson Supply Co., Inc. v. P.P.E., Inc., 986 F. Supp. 956, 958 (D. Md. 1997) (Judge Smalkin held that Rule 4.2 did not apply to ex parte contacts with former employees of a represented party); Camden v. State of Md., 910 F. Supp. 1115, 1116, 106 Ed. Law Rep. 571 (D. Md. 1996) (Judge Messitte held that 4.2 barred certain ex parte contacts with former investigator with extensive access to privileged communications whose work was directed by college, but who was actually employed by and on loan from another government agency); Zachair, Ltd. v. Driggs, 965 F. Supp. 741, 753 (D. Md. 1997), aff’d, 141 F.3d 1162 (4th Cir. 1998) (Judge Davis followed the lead of Judge Messitte in Camden). Most recently, in Rogosin v. Mayor and City Council of Baltimore, 164 F. Supp. 2d 684, 687 (D. Md. 2001), Magistrate Judge Bredar followed the lead of Camden and Zachair, in evaluating a motion for leave to interview the former employees. Calling the area of law a “minefield,” Bredar concluded that it would be virtually impossible to grant advance authorization to interview former employees ex parte, and instead directed the Plaintiffs to decide whether each such interview is appropriate in the light of the principles that emerge from the case law.

 

 

3  In an opinion on this issue, the ABA has suggested a two part process for evaluation of whether the permissive government exception to the no-contact rule applies. See ABA Ethics Opinion 97-408. First, the government official to be contacted must have authority to take or recommend action in the controversy, and the sole purpose of the communication must be to address a policy issue, including settling the controversy. Second, because of the predictable difficulty of confining the scope of the communication to policy issues where a contacted official is also a potential fact witness, and in recognition that the government has a right to the active participation of its lawyers even where the right to petition applies, the Committee believes it essential to ensure that government officials will have an opportunity to be advised by counsel in making the decision whether to grant an interview with the lawyer for a private party seeking redress. Thus, the ABA suggests that the lawyer for the private party should 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. They conclude that when the lawyer for the private party wishes to communicate in writing with government officials, the policy of fairness embodied in the rule also dictates that the lawyer must give government counsel copies of the written material at a time and in a fashion that will afford her a meaningful opportunity to advise the officials whether to receive the communication from the lawyer for the other side. This approach balances the constitutionally favored policy of affording direct access to government decision makers against the government’s need to protect itself from overreaching by lawyers for private parties. Requiring the lawyer to give advance notice of an intended communication gives the government the benefit of most of the rule’s salutary purposes, while obviating the possibility that government counsel could attempt to block access to their principals by invoking a rule of professional conduct. In situations where the right to petition has no apparent applicability, either because it is not the sole purpose of the contact to address a policy issue or because the government officials with whom the lawyer wishes to communicate are not authorized to take or recommend action in the matter, the ABA has concluded that Rule 4.2 should be considered fully applicable to a lawyer’s communications with officials of a represented government entity, just as it would apply to a lawyer’s communications with officials of a private organization. In such situations, no communication by the lawyer is permitted except with consent of counsel.

 

REFERENCES:

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  • Maryland Rules of Professional Conduct for Lawyers, Rule 4.2
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  • Maryland Ethics Opinion 1999-01
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  • ABA Ethics Opinion 97-408
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  • Case Law:
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    • Davidson Supply Co., Inc. v. P.P.E., Inc., 986 F. Supp. 956 (D. Md. 1997)
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    • Camden v. State of Md., 910 F. Supp. 1115 (D. Md. 1996)
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    • Zachair, Ltd. v. Driggs, 965 F. Supp. 741 (D. Md. 1997).
    •  
    • Rogosin v. Mayor and City of Baltimore, 164 F. Supp. 2d 684 (D. Md. 2001).
    •  

     

DISCLAIMER: Opinions of the Maryland State Bar Association (MSBA) Ethics Committee are an uncompensated service of the MSBA. This Committee’s opinions are not binding on the Maryland Court of Appeals, Maryland Attorney Grievance Commission, MSBA or this Committee. The reader is advised that subsequent judicial opinions, revisions to the rules of professional conduct, and future opinions of this Committee may render the Opinions stated herein outdated. As such, the Committee’s opinions are advisory only and neither the Committee nor the MSBA assumes any liability whatsoever with respect thereto. Accordingly, reliance upon the opinions of this Committee is solely at the risk of the user.