Can a lawyer suing a government agency present the client's settlement position directly to the agency's governing board without the agency lawyer's consent?

Plain-English summary

The Committee was asked whether a lawyer suing a government agency may make a presentation to the agency's managing board about the client's settlement position, without the consent of the agency's counsel, on the belief that the board was not hearing the claimant's settlement offers. The opinion concluded the communication would violate Rule 4.2.

The opinion first concluded that a governing board with authority to commit the agency or otherwise control litigation decisions is a "party" within Rule 4.2, consistent with the treatment of corporate officers who can bind an entity and with Alaska Ethics Opinion 71-1. It then addressed whether the constitutional right to petition government, or laws requiring public participation in meetings, "authorize by law" such contact. Distinguishing the rights of a non-lawyer party from the permissible scope of attorney conduct, the opinion concluded that Rule 4.2 does not restrict a party's own right to petition, including an attorney who is himself a party, but does prohibit an attorney acting in a representative capacity from advocating the client's litigation position directly to the agency's decision-making body without opposing counsel's consent.

The opinion reasoned that the policies behind Rule 4.2, principally allowing counsel to function in their proper role and preventing an opponent from bypassing counsel, apply to a presentation to a government agency, and that "authorized by law" requires a provision specifically allowing the communication, not laws of general application permitting public comment. It added that a board may direct its attorney to invite or consent to a presentation, that the party may ask the board to request the attorney's appearance, but that the attorney may not solicit such an invitation; on receiving an unsolicited invitation, the attorney may appear only after giving the agency's counsel reasonable notice and copies of any materials.

Currency note

This opinion was issued in 1994, before Alaska's adoption of the 2009 revisions to the Alaska Rules of Professional Conduct. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Was a government agency's board a "party" the lawyer could not contact?

A: Yes, where the board has authority to commit the agency or control the litigation. The opinion concluded such a board is a "party" under Rule 4.2, like corporate officers who can bind an entity.

Q: Did the First Amendment right to petition let the lawyer make the presentation?

A: No. The opinion concluded the right to petition does not "authorize by law" an attorney acting in a representative capacity to address the agency's decision-making body about pending litigation without opposing counsel's consent.

Q: Could the client appear before the board personally?

A: Yes. The opinion concluded Rule 4.2 does not restrict the party's own right to petition the government, and the lawyer is not barred from suggesting that the client appear personally.

Q: What if the agency invited the lawyer to appear?

A: The opinion concluded the lawyer may make the presentation on an unsolicited invitation but must give the agency's counsel reasonable prior notice and copies of any materials, and may not solicit such an invitation.

Background and rules framework

The opinion interpreted Alaska Rule of Professional Conduct 4.2 (Model Rule 4.2, communication with a person represented by counsel), substantially identical to its predecessor DR 7-104(A)(1). It construed who counts as a "party" when the represented entity is a government agency, and the scope of the rule's "authorized by law" exception, against the constitutional right to petition government.

Citations and references

Rules of Professional Conduct:

• Model Rule 4.2 / Alaska RPC 4.2 (communication with a represented person)

Cases:

• Walters v. National Association of Radiation Survivors, 105 S. Ct. 3180 (1985)
• In re Vollintine, 673 P.2d 755 (Alaska 1983)

Other opinions cited:

• Alaska Ethics Opinion 71-1: communicating with government employees
• ABA Ethics Opinion 1348 (1975): sending settlement offers to a represented adversary

See also

• Alaska Ethics Op. 2017-2: Contacting a Represented Government Official
• Alaska Ethics Op. 2011-2: Contacting Employees of an Opposing Organization
• Alaska Ethics Op. 2006-1: Lawyer on Own Behalf Contacting a Represented Entity

Source

• Landing page: https://alaskabar.org/ethics-discipline/ethics-opinions/adopted-ethics-opinions-chronological/
• Original PDF: https://alaskabar.org/wp-content/uploads/94-1.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

Ethics Opinion No. 94-1
Attorney Communication with the Managing Board of a Government
Agency, Regarding Pending Litigation, Without the Consent of Counsel
Representing the Agency.
The Committee has been requested to give an opinion as to whether it is
proper for an attorney who represents a party in litigation against a
government agency to make a presentation to the managing board of the
agency regarding the clients' settlement position, without the consent of the
attorney representing the agency. Under the facts presented to the committee,
the attorney's desire to make the presentation is based on a belief that
settlement offers made on behalf of the claimant have not been adequately
communicated to the board by its attorney. (endnote 1)
It is the opinion of the Committee that the communication would violate of
Rule 4.2 of the Alaska Rules of Professional Conduct.
Rule 4.2 provides as follows:
In representing a client, a lawyer shall not communicate about the subject of the
representation with a party or person he 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. (endnote 2)
The preliminary issue is whether the managing board of the government
agency is encompassed within the term "party" as used in Rule 4.2. Persons
who might be considered to be the "party" in the context of communications
with governmental representatives were addressed in Alaska Bar Association
Ethics Opinion 71-1, in which the Committee advised that:
(A)ttorneys may ethically communicate with employees of a governmental entity, so long
as that communication is not made with employees of the entity who may reasonably be
thought of as representing the entity in matters relating to the matter in controversy, and
as long as the lawyer reveals to the employee his identity and representation and the
connection between the representation and the communication.
In the context of private corporations, officers have uniformly been thought
of as representing the entity in the controversy. Thus, for example, in ABA
Formal Opinion 1410 (1978), it was held that officers and employees of a
corporation should be considered parties, for purposes of DR 7-104(A)(1), if
those officers and employees could commit the corporation by virtue of their
authority. See, Illinois State Bar Association Committee on Professional
Responsibility, Op. 85-12 (April 4, 1986) (includes top management persons
with the responsibility of making any final decisions); South Carolina Bar Ethics
Advisory Committee, Op. 86-10 (June 16, 1986) (board members of
homeowners association are encompassed by term "parties" in a dispute with
the association). If the board to which the presentation has the ability to
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commit the agency or otherwise exercise control over decisions regarding
litigation, it must be considered to be a "party" within the meaning of Rule 4.2.
The next issue is whether the right of the people to petition their
government under the first amendment to the United States Constitution and
Article I, section 6 of the Alaska Constitution, or any provisions of law that
require governing bodies to provide an opportunity for public participation in
meetings, compel an exception under Rule 4.2 whereby counsel is "authorized
by law" to communicate with the governing body without the consent of its
counsel. In that regard, the Comment to Rule 4.2 provides:
This rule does not prohibit communication with a party or an employee or agent of a
party, concerning matters outside the representation. For example, the existence of a
controversy between a government agency and a private party, or between two
organizations, does not prohibit a lawyer for either from communicating with non-lawyer
representatives of the other regarding a separate matter. Also, parties to a matter may
communicate directly with each other and a lawyer having independent justification for
communication with the other party is permitted to do so. 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. [Emphasis added.]
Unfortunately, this Comment addresses communications by both the
"party" and the "lawyer," thereby tending to blur the distinction between the
two with regard to permitted communications. Rule 4.2 does not regulate the
conduct of a party who is not an attorney. With regard to attorneys, it is the
Committee's opinion that the Comment interprets Rule 4.2 to authorize direct
contact regarding a matter in controversy with a government officer or agency,
without consent from the agency's attorney, when the contacting attorney is a
"party" to the controversy, and is not acting in a representative capacity. Thus,
where the attorney is a "party," there is no limitation on his or her first
amendment rights.
However, it is the Committee's opinion that Rule 4.2 and the interpreting
Comment do not authorize an attorney to advocate a clients' position relating
to pending litigation directly to the governing officer or body of a public agency
without the consent of the opposing counsel.
There are few interpretations or discussions of the "authorized by law"
exception to Rule 4.2, and the available analyses do not clearly distinguish
between rights of a "party" and the permissible scope of attorney
representation. One commentator, for example, confuses these issues and
concludes that prohibiting a lawyer for a private party in litigation with the
government from conducting ex parte interviews with "relevant governmental
officials" would permit the government agency's lawyer to veto discussions
between "private parties and government official." 2 G. Hazard & W. Hodes, The
Law of Lawyering §4.2:109 (2d ed. 1991). The limited available commentary
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also does not adequately address different policies that should be considered
depending on whether the communications in question involve pending
litigation, or the role of the government official to whom the communications
are directed, i.e. is this the decision maker? (endnote 3)
The principal issue faced by the Committee is whether the reasons for the
general prohibition against attorney communications with a represented party
regarding the subject of representation are sufficient to support the limitation
on exercise of the right to petition one's government that may result from
enforcement of the Rule to prohibit communications by an attorney
representing a party with governmental decision makers concerning pending
litigation.
Many policy reasons have been advanced in support of the prohibition
against attorney communication with a represented adverse party. These
include preventing an attorney from taking unfair advantage of a represented
party by application of the attorney's superior knowledge and skill [Complaint
of Korea Shipping Corp., 621 F.Supp. 164, 167 (D. Alaska 1985)]; avoidance of
disputes regarding conversations which could force an attorney to become a
witness; protecting a client from making inadvertent disclosures of privileged
information or from being subjected to unjust pressures; helping settle
disputes by channeling them through dispassionate experts; preventing
situations giving rise to the conflict between the lawyer's duty to advance a
client's interests and the duty not to overreach an unprotected party; and
providing parties with a rule that most of them would choose to follow in any
event. Leubsdorf, Communicating with Another Lawyer's Client: The Lawyer's
Veto and the Client's Interests, 127 Pennsylvania Law Review 683, 686-87
(1978-79).
These concerns are most obvious in situations involving verbal
communication in the absence of opposing counsel where a strong risk exists
that a lawyer may elicit damaging statements from, or conclude an ill-advised
settlement with, a represented party who is effectively deprived of advice of
counsel. In other situations, such as written communications, the concerns are
less apparent, but those communications are nevertheless prohibited. See, ABA
Ethics Opinion 1348 (August 19, 1975) (sending copies of settlement offers to a
represented adversary is improper). Many of the concerns would seem to be
diminished in the context of a presentation to a government agency,
particularly if that presentation is made in a public meeting.
Perhaps the best statement of the policy behind Rule 4.2, however, and one
which encompasses all of the other reasons for the rule, is that it is designed to
permit an attorney to function adequately in his or her proper role and to
prevent the opposing counsel from impeding performance as the legal
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representative of the client. E.g., Obeles v. State Bar, 108 Cal. Rptr. 359, 510
P.2d 719, 722-23 (1973). An attorney is not entitled to directly communicate
his or her version of the applicable facts and law to an adverse party
represented by counsel. That party has retained counsel based on a
determination that skilled assistance is necessary to evaluate the facts and
applicable law, to develop the strengths of the client's position, and to permit
the client to avoid direct demands and communications from the opponent.
Direct communications by opposing counsel with a represented adverse party
usually would be made only for the purpose of by-passing the party's counsel
in the hope of obtaining an advantage or opportunity that would not otherwise
be available or to advocate a position that was not persuasive when presented
through the party's counsel. The direct communication may distort the
strengths or fairness of the communicating party's position and overstate the
risks to the other party, thereby serving to undermine the adverse party's
confidence in his or her attorney and perhaps create beliefs, fears or
impressions that cannot later be corrected by that party's counsel. Those
concerns clearly apply in the context of a presentation to a government agency.
The committee believes the first amendment right of a citizen to petition the
government does not "authorize" attorneys to directly communicate with the
governing body of an agency on the citizen's behalf regarding a matter in
litigation. This position is supported by Walters v. National Assoc. of Radiation
Survivors, 574 U.S. 337, 105 S.Ct. 3180 (1985). Walters involved first
amendment challenges, based on free speech and right to petition, to a federal
statute which limits to $10 the fee that may be paid to an attorney or agent
who represents a veteran seeking benefits for service connected death or
disability. In upholding the validity of the statute, the court determined the
statutory claim process provided claimants with an opportunity to make a
meaningful presentation and that significant governmental interests favored
limitations on speech. The governmental interests that were found to out-weigh
the first amendment rights were the desire to keep proceedings nonadversarial, because there were few complex cases, and a policy against
veterans sharing their awards.
Similarly, many other agency proceedings are relatively simple in nature
and intended to be suitable for lay presentation of issues. Any argument that
an attorney is necessary to communicate complex issues regarding pending
litigation invokes the countervailing policies set forth above. Rule 4.2 clearly
does not restrict the "party's" right to petition its government by personally
appearing before the governing body, and the lawyer is not prohibited from
suggesting such an appearance.
Additional support for the limited impairment of the right to petition
government is found in In re Vollintine, 673 P.2d 755, 757 (Alaska 1983). That
case approved a restraint imposed by the Code of Professional Responsibility
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on the first amendment right of free speech. The attorney in that case was
disciplined for authoring correspondence containing intemperate and harassing
statements regarding government employees involved in resolving his client's
allotment claim. In rejecting a claim that the attorney's freedom of speech
rights outweighed the restrictions created by the Code of Professional
Responsibility, the court quoted from the concurring opinion of In re Sawyer,
360 U.S. 622, 79 S.Ct. 1376 (1959), where Justice Stewart said:
[A] lawyer belongs to a profession with inherited standards of propriety and honor, which
experience has shown necessary in a calling dedicated to the accomplishment of justice.
He who would follow that calling must conform to those standards.
Obedience to ethical precepts may require abstention from what in other circumstances
might be constitutionally protected speech.
The Committee is of the opinion that the phrase "authorized by law" does
not apply to all laws of general application permitting communications. Rather,
to be effective as an exemption from Rule 4.2, a provision of law authorizing
direct attorney contact with a represented government agency must specifically
allow the communication, except in those circumstances such as
communications during hearings or during the conduct of discovery where the
authority, if not clearly expressed, can be implied. (endnote 4) Laws requiring
agencies to permit public participation or comment in meetings do not require
or specifically authorize the type of communication in question.
Although various rules might be imposed to deal with differing aspects and
means of communication with the governing body of an agency regarding
pending litigation, or the results of such communications, the enforceability of
a rule and the likelihood of voluntary compliance are best insured by a uniform
rule that is easily applied. There are no significant policies supporting an
attorney's right to communicate on behalf of a client, regarding pending
litigation, directly with a represented party and, therefore, unless such
communications are specifically authorized by law or consented to by counsel
for the other party, they are prohibited, even when opposing counsel is present
or available. (endnote 5)
Several related aspects of this issue deserve brief discussion. It is obvious
that the governing body of an agency can direct its attorney to consent to a
request for appearance transmitted through the attorney for the agency, or it
might direct its attorney to invite opposing counsel to appear before the body if
that course of action appears appropriate. Rule 4.2 obligates an attorney to
abide by a request or direction of that nature from the client.
The party may also, consistent with the right to petition government, solicit
the governing body or its members to request a presentation by the party's
attorney. However, the attorney may not solicit an invitation to appear before
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the body to discuss pending litigation, nor may the attorney suggest that
course of action to the client. If an attorney receives an unsolicited invitation to
appear before the governing body of an agency to discuss pending litigation,
the attorney may make the presentation, but he is obligated to give the
attorney representing the agency reasonable prior notice of the invitation or
request, and provide the agency attorney with copies of any materials provided
to the board.
Summary
In summary, it is the opinion of this committee that:

1. A party is not prohibited by Rule 4.2 from communicating with a
   decision making body of a government agency regarding pending litigation,
   without consent of the attorney for the body, whether or not the party is
   represented by counsel.
2. An attorney who is a party to litigation has the same rights as any
   other party, including the right to communicate as set forth in paragraph 1
   above.
3. An attorney representing a party may not communicate regarding
   litigation pending against a government agency or officer directly with a
   government official or body having decision making authority concerning that
   litigation, without the consent of the attorney representing the official or
   governing body. (endnote 6)
4. If an attorney representing a party in litigation with a government
   agency is requested by its governing body or other person having decision
   making authority to meet and discuss the matter in litigation, the attorney may
   attend the requested meeting, but the attorney must give reasonable notice of
   the invitation to the attorney representing the agency, and provide such
   attorney with a copy of any material to be presented to the agency body or
   official.
   Approved by the Alaska Bar Association Ethics Committee on December 2,
   1993.
   Adopted by the Board of Governors on January 7, 1994
   Endnotes:

5. The obligation to communicate serious settlement offers is set forth in
   Rule 1.4 and the related Comments. The issue is not otherwise dealt with
   in this opinion.
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6. Rule 4.2 is substantially identical to its predecessor, DR 7-104(A)(1), and
   some of the authorities discussed in this opinion relate to interpretations
   of that disciplinary rule.

7. Where the government official to whom the communication is directed
   does not have the ultimate authority to determine the course of pending
   litigation, and is not a member of a body vested with that authority, the
   Committee agrees with those opinions holding that an attorney should
   give notice to the government's counsel prior to communication with the
   government official and that any submissions made to the government
   official should be given to such counsel.
8. See "Communication with Adverse Party: Worker's Compensation Carrier
   Contacting Claimant," Oregon Opinion 437 (September 1981), permitting
   oral communications only when "required by the statute" and directing
   other "authorized communications" be in writing with a copy to counsel
   representing the claimant.
9. Texas similarly interpreted Rule 4.02 of the Texas Disciplinary Rules of
   Professional Conduct, which is specifically applicable to communications
   about the subject of representation to an ". . . entity of government the
   lawyer knows to be represented by another lawyer regarding that subject
   . . .," as prohibiting a telephone conversation with an individual city
   counsel member expressing disapproval of the city's settlement offer in
   negotiations for settlement of litigation against the city. It does not
   appear that the "authorized by law" exception to the Rule had any effect
   on the decision. State Bar of Texas, Professional Ethics Committee
   Opinion 474 (Texas June 20, 1991).
10. This opinion does not prohibit an attorney representing a party from
    communicating with the Alaska State Legislature or any committee
    thereof regarding a matter in litigation, without the consent of the
    Attorney General's Office or special counsel for the legislature, so long as
    neither the legislature nor the legislative body is a party to the litigation.

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