Can a lawyer suing a city make a public records request directly to a city official who is a represented adverse party?

Plain-English summary

The inquiry asked whether, under RPC 4.2, a lawyer representing a party in a lawsuit against a city may request public records about the lawsuit directly from an official who is a managerial agent of the city, when that official is the proper person to receive such requests.

The committee concluded that a records request under RCW 42.17 et seq. provides a permissible independent justification for communicating with a government official who would otherwise be considered a party under RPC 4.2, because such contacts are expressly authorized by law. It therefore opined that an attorney's contact with an appropriate municipal official, done solely to obtain public records, does not violate RPC 4.2, even though the records sought may relate to the subject matter of the representation and the official has managerial responsibility that would make the official a party under RPC 4.2 for purposes of the lawsuit. The committee referenced the comments to ABA Model Rule 4.2.

Currency note

This opinion was issued in 1996, before the Washington State Bar Association'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 Treat this page as historical context, not current guidance.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. The opinion relies on the public records act then codified at RCW 42.17; Washington's Public Records Act was later recodified at RCW Chapter 42.56, so confirm the current statute before relying on it.

Common questions

Q: Does the no-contact rule block a public records request to an opposing government party?

A: The committee concluded it does not, where the request is made under RCW 42.17 to the appropriate official solely to obtain public records, because that contact is authorized by law.

Q: Does it matter that the official is a managerial agent who would otherwise be a "party"?

A: No. The committee said the records-request justification holds even though the official has managerial responsibility and would be considered a party under RPC 4.2 for purposes of the lawsuit.

Q: Does it matter that the records relate to the lawsuit?

A: The committee concluded the contact still does not violate RPC 4.2 even though the records sought may relate to the subject matter of the representation, because the request is independently authorized by law.

Background and rules framework

The opinion applied Washington RPC 4.2 (communication with a person represented by counsel, ABA Model Rule 4.2), which the committee read together with its "authorized by law" exception. The independent legal authorization came from Washington's public records act, then codified at RCW 42.17 et seq.

Citations and references

Rules of Professional Conduct:

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

Statutes:

• RCW 42.17 et seq. (public records act, as then codified)

See also

• WA Ethics Op. 1274: Contacting City Employees
• WA Ethics Op. 1363: Contacting an Agency Official
• WA Ethics Op. 1000: Contact With Represented Party

Source

• Landing page: https://ao.wsba.org/print.aspx?ID=1114

Original opinion text

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

Advisory Opinion: 1668
Year Issued: 1996
RPC(s): RPC 4.2; RCW 42.17
Subject: Contact with represented party; lawyer contacts managerial agent of city that is adverse party to make public records request

The Committee discussed your inquiry regarding whether it is permissible under RPC 4.2 for an attorney representing a party in a lawsuit against a city to request public records pertaining to this lawsuit directly from an official who is a managerial agent of the city, if this official is the proper person to submit such public record requests. The Committee decided that a records request under RCW 42.17 et seq. provides a permissible independent justification for communicating with a government official who would otherwise be considered a party under RPC 4.2, as such contacts are expressly authorized by law under RCW 42.17 et seq. ABA Model RPC 4.2 (comments); RPC 4.2. Hence, an attorney’s contact with an appropriate municipal official, done solely to obtain public records, does not violate RPC 4.2, notwithstanding that the records sought may be related to the subject matter of the representation by the attorney of a client in one or more lawsuits against the city, and notwithstanding that the government official contacted by the attorney has managerial responsibility and would be considered a party under RPC 4.2 for purposes of the lawsuits.