When the opposing party is a government agency with counsel, which of its employees can a lawyer interview without the agency lawyer's consent?

Plain-English summary

The inquiring attorney represented individuals committed to a state hospital and sought to interview hospital staff, including psychologists and social workers responsible for the habilitation plans and medication at issue, without the consent of the hospital's counsel. He took the position that consent was needed for administrators who could bind the hospital but not for direct-care professional staff.

The committee reviewed DR 7-104(A)(1), superseded by Rule 4-4.2 effective January 1, 1987, and its prior Opinion 78-4, which set guidelines for corporate parties: the opposing lawyer must go through general counsel unless consent is given; the restriction applies to officers, directors, managing agents, and other employees directly involved in the incident or matter; and the lawyer must not mislead employees and must identify his capacity. Opinion 78-4 had distinguished or overruled the narrower Opinion 68-20. The committee noted the comment to Rule 4-4.2 indicates the rule applies to any organization, including government agencies, covering persons with managerial responsibility and those whose acts may be imputed to the organization or whose statements may be admissions.

The committee concluded that the inquiring attorney was not in a materially different position from other attorneys, and that neither the "nature" of his clients' commitment nor the "lack of alternative resources" justified departing from Opinion 78-4. Although public-policy arguments can be made for greater access to government-agency employees, the committee concluded that result is not suggested by Rule 4-4.2. Accordingly, the Opinion 78-4 guidelines apply to government-agency parties as well, so if the direct-care staff were directly involved in the underlying matter, the attorney must obtain the hospital counsel's consent before interviewing them about the matter.

Currency note

This opinion was issued in 1987, before The Florida Bar's adoption of the 2006 revisions to the 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 Treat this page as historical context, not current guidance.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: Does the no-contact rule apply to a government agency the same way it applies to a corporation?

A: The opinion concluded that the guidelines for communicating with managers and employees of corporate parties in Opinion 78-4 apply to government-agency parties as well.

Q: Which agency employees require the agency counsel's consent before an interview?

A: The opinion concluded that consent is required for management and for employees whose acts or omissions are at issue (those directly involved in the matter), and whose statements could be imputed to or be admissions of the agency.

Q: Can a lawyer interview agency employees who are just witnesses?

A: The opinion concluded that employees who are mere witnesses, with no responsibility for the matter in question, may be interviewed without the prior consent of the entity's counsel.

Background and rules framework

The opinion interprets Rule 4-4.2 (Model Rule 4.2; predecessor DR 7-104(A)(1)) on communicating with a represented person, extended to organizational and government-agency parties through the rule's comment and the committee's earlier Opinion 78-4.

Citations and references

Rules of Professional Conduct:

• Fla. Rule 4-4.2 / Model Rule 4.2; CPR DR 7-104(A)(1) (communication with represented persons)

Other opinions cited:

• Fla. Ethics Opinions 68-20 (withdrawn), 78-4

See also

• FL Bar Ethics Op. 09-1: Contacting Agency Staff
• FL Bar Ethics Op. 88-14: Contacting Former Corporate Employees
• FL Bar Ethics Op. 90-4: No-Contact Rule and DOJ Lawyers

Source

• Landing page: https://www.floridabar.org/etopinions/etopinion-87-2/
• Original PDF: https://www-media.floridabar.org/uploads/2017/04/FL-Bar-Ethics-Op-87-2-2.pdf

Original opinion text

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

FLORIDA BAR ETHICS OPINION
OPINION 87-2
May 1, 1987
Advisory ethics opinions are not binding.

When the opposing party is a government agency represented by counsel, an attorney may not communicate concerning the matter with the agency's management or any other employee whose act or omission in connection with the matter may be imputed to the agency or whose statement may constitute an admission on the part of the agency, unless consent of the agency's counsel is obtained.

CPR: DR 7-104(A)(1)
RPC: 4-4.2
Opinions: 68-20, 78-4

The inquiring attorney seeks clarification of Florida ethics opinions on the issue of communications with officials and staff of a government entity that is the opposing party in litigation or some other controversy. The opinions in question primarily are staff opinions issued subsequent to the Committee's Opinion 78-4, which addresses communications with corporate parties.

The attorney provides representation for certain individuals committed to a state hospital. This representation includes habeas corpus petitions challenging the legality of a client's continued commitment to the hospital. The hospital administrator is the named defendant. An issue, or the issue, in this litigation is the content or implementation of the hospital's habilitation plan for the client (a habilitation plan is required for any mentally retarded person committed to the hospital). Another issue in the litigation may be the medication prescribed or given to the client.

The attorney's position appears to be that although he should obtain the consent of the hospital's counsel before interviewing hospital administrators or staff who "have authority to speak and to bind the hospital administration by what they say and do," he should not have to obtain counsel's consent to interview hospital staff who provide professional or direct care services to the patients. These employees include psychologists and social workers, who apparently are the staff responsible for developing and implementing the habilitation plans and the staff who administer medication.

DR 7-104(A), which was superseded by Rule of Professional Conduct 4-4.2 on January 1, 1987, provided:

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

For corporate parties, the Professional Ethics Committee in Opinion 78-4 applied the disciplinary rule as follows:
(1) If a corporation has a general counsel representing it in all legal matters, the opposing lawyer must communicate with the general counsel regarding the matter in question unless he has the general counsel's prior consent to communicate with the corporate party.
(2) The restriction on communications applies for officers, directors, managing agents and "other employees [who] have been directly involved in the incident or matter giving rise to the investigation or litigation." [Emphasis supplied.]
(3) The opposing party's attorney, in communicating with a corporate representative or employee, should make no statement that would mislead or deceive that employee, and he (or his agent) must identify the capacity in which he is conducting the investigation.

In Opinion 78-4 the committee distinguished or overruled its earlier Opinion 68-20 [since withdrawn] as being too restrictive, particularly when litigation has not yet commenced, of opposing counsel's right to interview a party's employees "who are sufficiently removed from the management of the company and from the potentiality of themselves being a defendant . . . so as to not reasonably be considered a 'party' to be represented by the corporation's counsel."

Opinion 68-20 [since withdrawn] found "no impropriety in an attorney representing a party in dealings with the State Road Department contacting any member of the State Road Board, or its staff in connection with the interests of his client, so long as the matter in issue has not been referred [by] the Board or its staff to its legal department." The Committee continued: "Of course, when such matters are referred to the legal department (which of course would be true in the case of all litigation) the attorney should deal only with the legal division of the State Road Department." [Emphasis supplied.]

The Committee cautioned that "because of the wide variation in function, composition, and jurisdiction of state and other public agencies," its opinion was limited to the State Road Department. The Committee has never returned to the matter of communications with officials and employees of government agencies to develop any distinctions between types of agencies or entities.

The Comment RPC 4-4.2, which is essentially the same as DR 7-104(A)(1), supports the Committee's interpretation of the disciplinary rule's application to corporate parties. The Comment also indicates that the proposed rule applies to any "organization," including government agencies. The Comment states in pertinent part:

In the case of an organization, this Rule prohibits communications by a lawyer for one party concerning the matter in representation with persons having a managerial responsibility on behalf of the organization, and with any other person whose act or omission in connection with that matter may be imputed to the organization for purposes of civil or criminal liability or whose statement may constitute an admission on the part of the organization. [Emphasis supplied.]

It appears that other states commonly apply the corporate party rule to government agencies. It further appears that the Committee's approach to communications with corporate officials and employees is the mainstream approach. Some ethics committees and courts have stated a more liberal rule, while others are much more restrictive of communications with employees.

Opinion 78-4 is a thoughtful attempt to balance an attorney's need to properly prepare and investigate litigation and a corporate/government/organizational party's interest in avoiding opposing counsel's elicitation of damaging uncounseled statements from officials or employees whose statements would commit, bind or be deemed admissions of the entity. Such entity representatives include not only management, but also those employees whose acts or omissions are at issue in the litigation (in the words of Opinion 78-4, those employees who were "directly involved in the incident or matter"). Not included are employees who are mere witnesses, having no responsibility for the matter in question. Opposing counsel is free to interview the latter employees without the prior consent of the entity's counsel.

It appears to be the inquiring attorney's position that at least some government agencies should be treated differently from corporations. Specifically, he appears to be contending that because of the "nature" of his clients' commitment to the hospital and "the lack of alternative resources for information," the hospital's professional and direct care staff should be accessible without the prior consent or presence of the hospital's counsel, and without resort to formal discovery, even if they are the individuals directly responsible for the matter at issue and would be treated as parties under Opinion 78-4.

In terms of the "lack of alternative resources for information," the attorney does not seem to be in a position different from that of most attorneys representing any client against any party, whether an individual or some kind of organizational entity. Further, the attorney does not explain how or why the "nature" of his clients' commitment justifies or warrants a departure from the guidelines provided by Opinion 78-4.

Public policy arguments (based on government agencies' unique responsibility to the public at large and to the particular segments of society served by those agencies) can be made for granting attorneys greater access to employees of government-agency defendants than to employees of corporate defendants. See Note, "DR 7-104 of the Code of Professional Responsibility Applied to the Government 'Party,'" 61 Minnesota L. Rev. 1007-1034 (1977). However, that result is not suggested by Rule 4-4.2.

In conclusion, the guidelines set out in Opinion 78-4 for communications with managers and employees of corporate parties apply to government-agency parties as well. Under these guidelines, if the professional and direct care staff in question have been directly involved in the matter underlying the litigation, the inquiring attorney must obtain the consent of the hospital's counsel before the interviews them about the matter.