Can a lawyer for a government agency impose a blanket veto that bars an opposing lawyer from contacting any agency employee outside the government lawyer's presence?

Plain-English summary

The Committee was asked, in two separate requests, whether a lawyer representing a government office could prevent a non-government opponent from contacting all of that office's employees outside the government attorney's presence. It answered "No," addressing only such "blanket vetoes."

The opinion applied DR 7-104(A)(1), the rule against bypassing the lawyer of a represented party. It explained that the rule lets a lawyer function in the lawyer's proper role and guards against a bypassed party making prejudicial statements, but that when the party is a multi-person entity like a corporation or a government body the protection, read too broadly, can conflict with the goal of access to witnesses. The Committee noted its past view that DR 7-104 does not preclude unconsented contacts with employees who lack power to bind the entity or who hold no confidential information, and that the same exceptions apply to government parties.

The opinion observed that the rule should be narrowly construed against the government because of constitutional access guarantees and "sunshine" policies, and that the phrase "authorized by law" can include a party's right to speak with government officials about the matter. It cited Vega v. Bloomsburgh, North Carolina, Alaska, and New York opinions, including New York's view that minority members of a public body need not be treated as adverse parties to their constituents.

Currency note

This opinion was issued in 1988 under Kentucky's former Code of Professional Responsibility (in effect 1971 to 1990), before the Kentucky Bar Association's 1990 adoption of the Rules of Professional Conduct (SCR 3.130) and the substantial 2009 revisions to those rules. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against the current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Can a government agency's lawyer bar an opponent from talking to any agency employee?

A: No. The opinion concluded that such a blanket veto is not supported by DR 7-104(A)(1), which does not reach every employee of a multi-person government entity.

Q: Which agency employees fall outside the no-contact rule?

A: The opinion said the rule does not preclude unconsented contacts with employees who lack the power to bind the entity or who do not hold confidential information belonging to it, applying the same exceptions used for corporate employees.

Q: Does the employee have to talk to the opposing lawyer?

A: No. The opinion addressed only the lawyer's veto; it stated the individual contacted informally is free to discuss the matter or not, as he or she chooses.

Background and rules framework

The opinion interprets DR 7-104(A)(1) of the former Code of Professional Responsibility, the no-contact rule that became the analog to Model Rule 4.2 (communication with a represented person). The opinion expressly noted that the comments to then-Proposed Model Rule 4.2 supported reading "authorized by law" to include a party's right to speak with government officials about a controversy with the agency.

Citations and references

Rules of Professional Conduct:

• DR 7-104(A)(1) (former Code; no-contact rule)
• MR 4.2 (communication with represented persons; the analog the opinion references)

Cases:

• Vega v. Bloomsburgh, 427 F. Supp. 593 (D. Mass. 1977), agency employees not all "represented parties"
• Mitton v. State Bar, 78 Cal. Rptr. 649 (Cal. 1969), purpose of the no-contact rule
• Abeles v. State Bar, 108 Cal. Rptr. 359 (Cal. 1973), risk of prejudicial statements

Other opinions cited:

• KBA E-213 (1979); N.C. Op. 184 (1965); Alaska Op. 71-1 (1971); New York Op. 404 (1975)

See also

• AL Ethics Op. 2003-03: Contacting Gov't Officials
• AL Ethics Op. 1990-79: Statements From Opponent Staff
• GA Ethics Op. 86-4: Letters to an Insured Defendant

Source

• Landing page: https://kybar.org/For-Members/Rules-Ethics-Information/Ethics-Opinions
• Original PDF: https://kybar.org/Portals/0/Admin/Ethics%20Opinions/KBA_E-332.pdf

Original opinion text

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

KENTUCKY BAR ASSOCIATION
Ethics Opinion KBA E-332
Issued: September 1988

This opinion was decided under the Code of Professional Responsibility, which
was in effect from 1971 to 1990. Lawyers should consult the current version of
the Rules of Professional Conduct and Comments, SCR 3.130 (available at
http://www.kybar.org), before relying on this opinion.

Question:

May a lawyer representing a government office or department in a litigated
matter prevent his non-government opponent from contacting all employees
of the government office or department outside the presence of the
government attorney.

Answer:

No.

References:

DR 7-104; KBA E-213(1979); C. Wolfram, Modern Legal Ethics 614-15;
Note: DR 1-104 of the Code of Professional Responsibility Applied to the
Government "Party"; Vega v. Bloomsburgh, 427 F. Supp. 593 (D. Mass.
1977).
OPINION

This question was presented by two different lawyers in two different contexts. In
the first request, a lawyer complained that counsel for a government department had
insisted that counsel had no right to contact any employee of the department regarding a
litigated matter, counsel's "blanket veto" extending down to field employees and
inspectors. In another request, a lawyer complained that he had been charged with an
ethical violation as a result of his discussions with a minority member of an elected local
board regarding a decision that had been made by the board as an entity. In this opinion
we only address the subject of such "blanket vetoes". The application of the familiar rule
against bypassing the lawyer of a represented party is necessarily fact sensitive, and will
call for the application of counsel's sound judgment in close cases. Furthermore, we only
address the "lawyer's veto" in this context. The particular individual who is contacted
informally is free to discuss a matter or not, as he or she chooses.
Disciplinary Rule 7-104(A)(1) provides that during the course of the lawyer's
representation of a client the lawyer shall not "communicate or cause another to
communicate on the subject of the representation with a party (the lawyer) knows to be
represented by a lawyer in that matter unless (the lawyer) has the prior consent of the
lawyer representing such other party or is authorized by law to do so". The rule "was
designed to permit an attorney to function adequately in (the lawyer's) proper role and to
prevent the opposing attorney from impeding (the lawyer's) performance in such role".

Mitton v. State Bar, 78 Cal.Rptr. 649 (Cal. 1969). The rule also provides a safeguard
against the risk that a party whose counsel is by-passed might unwittingly make statements
to opposing counsel (perhaps prompted by overreaching or deception) that could prejudice
the party's interest at trial. Abeles v. State Bar, 108 Cal.Rptr. 359 (Cal. 1973). The rule
reflects concepts of fair play inherent in the adversary system. Generally, it seems only fair
and reasonable that government counsel and government parties receive protection under
the rule.
On the other hand, "when the party is a multi-person entity, such as a corporation or
a government body ... DR 7-104's protection of parties (if interpreted too broadly) may be
at odds with the goal of permitting access to witnesses in order to uncover and present all
relevant evidence to the trier of facts". Note: DR 7-104 of the Code of Professional
Responsibility Applied to the Government "Party", 61 Minn.L. Rev. 1007, 1013 (1976-77).
In the past the Committee has observed that DR 7-104 does not preclude
"unconsented" contacts with corporate employees who lack the power to bind the corporate
opponent, or who do not possess "confidential" information belonging to the employer
entity. Clearly, the same exceptions would logically apply in the context of the
"government" as a party. Moreover, Professor Wolfram and other influential commentators
have observed that the rule should be narrowly construed in this context because of
constitutional guarantees of access to government and statutory policies encouraging
government in the sunshine". C. Wolfram, Modern Legal Ethics 614-15. Indeed, his
interpretation of the rule is supported by the Comments to Proposed Model Rule 4.2 (the
analog to DR 7-104), which suggests that the expression "authorized by law" (also found in
DR 7-104) includes the right of a party to a controversy with a government agency to speak
with government officials about the matter.
In fact, the Code has been narrowly interpreted by courts and state bar
committees. For example, in Vega v. Bloomsburgh, 47 F.Supp. 593 (D. Mass. 1977) a
case brought against a department and certain high-level officials, the court rejected the
state's contention that all employees of a department were "represented parties" that
could not be interviewed by plaintiff's counsel outside the presence of the Assistant
Attorney General representing the department. In reaching this conclusion the court
employed the reasoning ordinarily applied in the context of contacts with corporate
employees, and also cited first amendment considerations. Both the North Carolina and
Alaska Bar Committees have issued similar opinions. See N.C. Op. 184(1965) and
Alaska Op. 71 1 (1971).
The New York State Bar went even further in a case involving communications
with certain elected officials. In New York Op. 404 (1975) the Bar Committee stated that
an attorney could communicate with individual minority members of a board of education
about a contested board decision.
The Committee observed that:

The overriding public interest compels that an opportunity be
afforded to the public and their authorized representatives to obtain the
views of, and pertinent facts from, public officials representing them. ...
Minority members of a public body should not ... be considered adverse
parties their constituents whom they were selected to represent.
While we cannot address every situation that may arise with a single opinion, we
offer these observations in the hope that they will provide useful guidance to government
counsel as well as lawyers involved in disputes with government agencies and offices.
This opinion addresses only contacts regarding government employees and officers
serving in such capacity. Lawyer's concerned with the propriety of contacting employees
and agents of non-governmental entities should consult our earlier opinions.

Note to Reader
This ethics opinion has been formally adopted by the Board of Governors of the
Kentucky Bar Association under the provisions of Kentucky Supreme Court Rule 3.530
(or its predecessor rule). The Rule provides that formal opinions are advisory only.