Can a North Carolina lawyer contact a government records custodian to request public records when the government is an adverse party represented by counsel?

Plain-English summary

The opinion revisits RPC 219 (adopted 1995), which held that a lawyer may contact a custodian of public records to request and examine records related to a representation even when the custodian and the government entity employing the custodian are adverse parties and the government's lawyer does not consent. The first inquiry asks whether that ruling survived the comprehensive 1997 and 2003 revisions and renumbering of the Rules. The opinion answers no, the ruling did not change: RPC 219 rested on the anti-contact rule's exception for communications authorized by law, and the essential provisions of that exception were carried forward unchanged into current Rule 4.2(a).

The opinion ties the analysis to the statute. Citing ABA Formal Ethics Opinion 95-396, it explains that the "authorized by law" exception is satisfied by a constitutional provision, statute, or court rule that expressly allows a communication to occur without counsel. N.C. Gen. Stat. 132-6(a) requires every custodian of public records to permit inspection and to furnish copies, which the opinion treats as a statutory authorization that remains an exception to Rule 4.2(a).

The second inquiry concerns the permissible content of those contacts. The opinion concludes a lawyer may communicate with the custodian to inspect, examine, or obtain copies, and to the extent necessary to identify the records sought, because identifying records furthers the Public Records Act's purpose of facilitating access. The opinion adds that such communications should be limited to identifying records and should not be used as an opportunity to discuss the substance of the disputed matter.

The third inquiry concerns finding the right custodian. Citing N.C. Gen. Stat. 132-2 (the public official in charge of an office is the custodian of its records), the opinion concludes a lawyer may speak with government employees, without the government lawyer's consent, for the purpose of identifying the official in charge of an office and therefore the custodian of that office's records.

In practice

Under the North Carolina rules as they stood at the time of the opinion, contact with a represented government party's records custodian to request, identify, and inspect public records is permitted without opposing counsel's consent, because the Public Records Act supplies the Rule 4.2(a) "authorized by law" exception. Per the opinion, the same reasoning lets a lawyer ask government employees who the custodian is.

Per the opinion, the authorization is bounded by its purpose. The opinion holds that the communications should be limited to identifying and obtaining records and should not be used to discuss the substance of the disputed matter; the exception covers records access, not party contact about the merits.

Common questions

Q: Can I contact a government agency's records custodian directly when the agency is the opposing party and has a lawyer?

A: Yes. The opinion concludes that requesting and inspecting public records under N.C. Gen. Stat. 132-6(a) is authorized by law and therefore within the Rule 4.2(a) exception, so the contact does not require opposing counsel's consent.

Q: Did the 1997 and 2003 rule revisions overrule RPC 219?

A: No. The opinion holds the essential provisions of the anti-contact rule were not changed when the Rules were revised and renumbered; current Rule 4.2(a) carries forward the "authorized by law" exception RPC 219 relied on.

Q: What can I say to the custodian during the contact?

A: The opinion limits the communication to identifying, inspecting, examining, and obtaining copies of records. It states such contacts should not be used as an opportunity to communicate about the substance of the disputed matter.

Q: May I ask government employees who the custodian is?

A: Yes. Citing N.C. Gen. Stat. 132-2, the opinion concludes a lawyer may speak with government employees, without the government lawyer's consent, to identify the official in charge of an office and thus the custodian of that office's records.

Background and rules framework

The opinion applies North Carolina Rule 4.2 (communication with a person represented by counsel, the analogue of Model Rule 4.2), specifically the exception in Rule 4.2(a) for communications "authorized by law." It traces the rule's lineage through former Rule 7.4(a)/(1), the earlier numbering on which RPC 219 was decided, and treats the North Carolina Public Records Act (N.C. Gen. Stat. Chapter 132, including 132-1(b), 132-2, and 132-6(a)) as the law that authorizes the contact.

Citations and references

Rules of Professional Conduct:

• MR 4.2 / NC Rule 4.2(a) (communication with a represented person; "authorized by law" exception)
• NC former Rule 7.4(a)/(1) (the anti-contact rule as numbered when RPC 219 was decided)

Statutes:

• N.C. Gen. Stat. 132-6(a) (custodian must permit inspection and furnish copies of public records)
• N.C. Gen. Stat. 132-2 (the public official in charge of an office is the custodian of its records)
• N.C. Gen. Stat. 132-1(b) (public-records policy)

Other opinions cited:

• NC RPC 219 (1995): a lawyer may contact a public-records custodian to examine records even when the employing government entity is an adverse party.
• ABA Formal Ethics Opinion 95-396 (1995): the "authorized by law" exception is satisfied by a constitutional provision, statute, or court rule that expressly allows the communication.

See also

• ABA Op. 97-408: Contacting a Represented Agency (4.2)
• ABA Formal Op. 95-396: The No-Contact Rule (4.2)

Source

• Landing page: https://www.ncbar.gov/for-lawyers/ethics-and-governing-rules/ethics-opinions/opinions/2011-formal-ethics-opinion-15/

Original opinion text

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

Inquiry #1:

Adopted in 1995, RPC 219 rules that a lawyer may communicate with a custodian of public records, pursuant to the North Carolina Public Records Act, N.C. Gen. Stat. Chap. 132, for the purpose of making a request to examine public records related to a representation although the custodian and the government entity employing the custodian are adverse parties and the lawyer for the custodian and the government entity does not consent to the communication.

Has the ruling in this opinion changed in light of the comprehensive revisions to the Rules of Professional Conduct in 1997 and 2003?

Opinion #1:

No. RPC 219 relies upon Rule 7.4(a), the “anti-contact rule” 1 at that time, and specifically applies the provision in the rule that allows a lawyer to communicate with a represented opposing party without the consent of opposing counsel if the communication is authorized by law. Rule 7.4(1) provided at that time:

[d]uring the course of his or her representation of a client, a lawyer shall not

(1) communicate or cause another to communicate about the subject of the representation with a party the lawyer 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.

The essential provisions of the anti-contact rule were not changed when the Rules were revised and renumbered in 1997 and again revised in 2003. The current version of the rule, Rule 4.2(a), provides:

[d]uring the representation of a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order. It is not a violation of this rule for a lawyer to encourage his or her client to discuss the subject of the representation with the opposing party in a good-faith attempt to resolve the controversy.

ABA Formal Ethics Opinion 95-396 (1995) observes that Model Rule 4.2’s exception permitting a communication “authorized by law” is satisfied by “a constitutional provision, statute, or court rule, having the force and effect of law, that expressly allows a particular communication to occur in the absence of counsel.”

N.C. Gen. Stat. §132-6(a) requires that:

[e]very custodian of public records shall permit any record in the custodian's custody to be inspected and examined at reasonable times and under reasonable supervision by any person, and shall, as promptly as possible, furnish copies thereof upon payment of any fees as may be prescribed by law.

The statute authorizes direct communication with a custodian of public records for the purpose of inspecting and furnishing copies of public records and remains an exception to the communications prohibited in current Rule 4.2(a).

Inquiry #2:

RPC 219 does not examine whether there are limitations on the content of the communications with the public records custodian. Apart from communications for the purposes of submitting a request for public records, arranging a convenient time to inspect the records, and inspecting the records, may the lawyer communicate with the custodian for the purpose of identifying the documents sought or for any other purpose related to the representation?

Opinion #2:

A lawyer may communicate with a custodian of public records for the purposes set forth in N.C. Gen. Stat. §132-6(a), to inspect, examine, or obtain copies of public records. To the extent that the lawyer must communicate with the custodian to identify the records to be inspected, examined, or copied, the communication is in furtherance of the purpose of the Public Records Act2 to facilitate access to public records and is allowed without obtaining the consent of opposing counsel. Such communications should be limited to the identification of records and should not be used by the lawyer as an opportunity to engage in communications about the substance of the disputed matter.

Inquiry #3:

The identity of the custodian of public records may vary depending upon the nature of the records sought and the organization of the government entity. RPC 219 does not examine any limitations on the lawyer’s inquiries of government employees or officials for the purpose of determining the identity of the custodian. May the lawyer speak to government employees for this purpose without the consent of the lawyer for the government?

Opinion #3:

N.C. Gen. Stat. §132-2 provides that:

[t]he public official in charge of an office having public records shall be the custodian thereof.

A lawyer may communicate with government employees, without obtaining the consent of the government’s lawyer, for the purpose of identifying the public official in charge of an office and therefore the custodian of the records of that office.

End Notes

• 1. This term is used frequently by the ABA and others to refer to the rule that restricts lawyers from communicating directly with represented persons. See e.g., ABA Formal Ethics Opinion 95-396 (1995).
• 2. The public policy for the Public Records Act is set forth in N.C. Gen. Stat. §132-1(b): The public records and public information compiled by the agencies of North Carolina government or its subdivisions are the property of the people. Therefore, it is the policy of this state that the people may obtain copies of their public records and public information free or at minimal cost unless otherwise specifically provided by law. As used herein, "minimal cost" shall mean the actual cost of reproducing the public record or public information.