Can a corporation's lawyer contact a government agency's regional administrator directly during a possible enforcement proceeding, or must it go through the agency's counsel?

Plain-English summary

The inquiry concerned whether counsel for a corporation subject to an Environmental Protection Agency consent decree could communicate directly with the acting regional administrator during the pendency of a possible enforcement proceeding, or whether the contact should go through counsel for the administrator. The committee was of the opinion that RPC 4.2 provides authority to contact a government official even when represented by counsel when such contact is authorized by law, consistent with the Supreme Court's opinion in Wright v. Group Health Hospital, 103 Wn.2d 192 (1984).

The committee, which is charged with interpreting the Rules of Professional Conduct only, was of the opinion that it cannot render an opinion on whether such contact is authorized by law.

Currency note

This opinion was issued in 1992, before the Washington State Bar Association's adoption of the 2006 revisions to the Washington 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 Treat this page as historical context, not current guidance.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 bar a lawyer from contacting a represented government official?

A: Under this 1992 opinion, RPC 4.2 provides authority to contact a government official even when represented by counsel where the contact is authorized by law.

Q: Did the committee say this particular EPA contact was permitted?

A: No. The committee was of the opinion that it cannot render an opinion on whether the contact is authorized by law; that legal question is outside its function.

Q: What authority did the committee rely on?

A: The Washington Supreme Court's opinion in Wright v. Group Health Hospital, 103 Wn.2d 192 (1984).

Background and rules framework

At the time of this opinion, Washington's RPC 4.2 prohibited communicating with a represented party about the subject of the representation absent counsel's consent or authorization by law, the subject the Model Rules place in Rule 4.2. The committee read the "authorized by law" clause to encompass certain contacts with government officials but left the legal question of authorization to be resolved elsewhere.

Citations and references

Rules of Professional Conduct:

• ABA Model Rule 4.2 (communication with represented persons)
• Washington RPC 4.2

Cases:

• Wright v. Group Health Hospital, 103 Wn.2d 192 (Wash. 1984)

See also

• WA Ethics Op. 1359: Disclosing Police Reports to a Criminal Defendant

Source

• Landing page: https://ao.wsba.org/print.aspx?ID=443

Original opinion text

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

The Committee reviewed your inquiry concerning the question of whether counsel for a corporation which is subject to a consent decree by the Environmental Protection Agency may properly communicate with the acting regional administrator during pendency of a possible enforcement proceeding or whether that contact should be through counsel for the administrator. The Committee is of the opinion that RPC 4.2 provides authority to contact a government official even when represented by counsel when such contact is authorized by law. This is consistent with the Supreme Court opinion in Wright v. Group Health Hospital, 103 Wn.2d 192 (1984). However, the Committee, which is charged with interpreting the Rules of Professional Conduct only, cannot render an opinion on whether such contact is authorized by law.