Does the no-contact rule (RPC 4.2) apply to a bar member who works only as a lobbyist or policy analyst, not as an attorney, when communicating with a represented office?

Plain-English summary

The inquirer was a bar member employed by a private nonprofit association as a policy analyst and lobbyist, not as an attorney. He asked whether he would violate RPC 4.2 by communicating with a statutorily created ombudsman office (which investigates and resolves consumer complaints, monitors legislation, and educates consumers). He wrote after receiving a letter from an attorney on retainer to the ombudsman asserting that, per RPC 4.2, all future communication to any ombudsman in the state had to go through the ombudsman's attorney unless that attorney authorized otherwise.

The committee said RPC 4.2 prohibits a lawyer from communicating with a represented party about the subject of the representation "[i]n representing a client," so the prohibition depends on an attorney-client relationship and a communication in the context of representation. Under Washington law, an attorney-client relationship is a function of whether the attorney's advice or assistance is sought and received on legal matters. Assuming the accuracy of the inquirer's representation that he worked only as a policy analyst and lobbyist with no attorney-client relationship with the association or its members, the committee concluded that RPC 4.2 does not govern his communications on behalf of the organization.

The committee declined to reach the inquirer's remaining questions (about the legislative and regulatory process, whether a person with an attorney on retainer is always "represented," and restrictions on other attorneys at public meetings) because they related to the conduct of others or described hypothetical and abstract circumstances. It noted that the committee's function is to advise members of the bar on the ethical propriety of their own contemplated professional conduct.

Currency note

This opinion was issued in 2002, 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 Treat this page as historical context, not current guidance.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.

In practice

Under the Washington rules as they stood at the time of the opinion, the committee treated RPC 4.2 as engaged only when the bar member is acting as a lawyer representing a client; a bar member working solely in a non-legal capacity (here, a policy analyst and lobbyist) with no attorney-client relationship is not governed by the rule for communications made on the organization's behalf. The committee limited its answer to the inquirer's own conduct and declined to address the conduct of other lawyers or hypothetical scenarios.

Common questions

Q: Does RPC 4.2 apply to a lawyer who is working as a lobbyist, not as an attorney?

A: The committee concluded that RPC 4.2 applies only "in representing a client"; absent an attorney-client relationship with the employer or its members, the rule does not govern the bar member's communications made as a policy analyst and lobbyist.

Q: What makes the no-contact rule apply?

A: The committee said the prohibition depends on the existence of an attorney-client relationship and a communication in the context of the representation, and that under Washington law an attorney-client relationship turns on whether the attorney's advice or assistance is sought and received on legal matters.

Q: Did the committee resolve whether a party with an attorney on retainer is always "represented" for RPC 4.2?

A: No. The committee declined to reach that and the inquirer's other questions because they related to the conduct of others or were hypothetical and abstract; it advises members only on the propriety of their own contemplated conduct.

Background and rules framework

The opinion applies Washington RPC 4.2 (communication with a person represented by counsel; corresponding to Model Rule 4.2), reading the rule's "[i]n representing a client" language to limit its reach to lawyers acting as lawyers. It frames the existence of an attorney-client relationship under Washington law as turning on whether legal advice or assistance is sought and received. The opinion reflects Washington's pre-2006 rule numbering.

Citations and references

Rules of Professional Conduct:

• Model Rule 4.2 / Washington RPC 4.2 (communication with a person represented by counsel)

See also

• WSBA Ethics Op. 1000: Contact With an Opposing Party Represented by Counsel
• WSBA Ethics Op. 1274: Communicating With City Employees Under the No-Contact Rule
• WSBA Ethics Op. 1363: Contacting a Represented Government Official

Source

• Landing page: https://ao.wsba.org/print.aspx?ID=1231

Original opinion text

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

Advisory Opinion: 1984
Year Issued: 2002
RPC(s): RPC 4.2
Subject: RPC 4.2, restrictions on communication as lobbyist

The inquiring lawyer is employed by a private nonprofit association as a policy analyst and lobbyist, not as an attorney. He asks whether he violates RPC 4.2 by communicating with a statutorily created office, known as an ombudsman, responsible for investigating and resolving consumer complaints, monitoring legislation, educating consumers with respect to their rights, and public agencies with respect to consumers’ problems.

The inquiring lawyer was prompted to write the committee after receiving a letter from an attorney, who describes himself as being on retainer to the ombudsman, that stated that all future correspondence or communication to any ombudsman in this state, per RPC 4.2, must be directly with the ombudsman’s attorney only, unless otherwise authorized by that attorney.

The inquirer poses the following questions:

(1) Does RPC 4.2 apply to someone who is not employed as an attorney, despite the fact that they are a member of the bar?

(2) To what extent, if any, does RPC 4.2 apply in the context of the legislative and regulatory process?

(3) If someone has an attorney on retainer, are they always represented for the purposes of RPC 4.2?

(4) If the client claiming protection under RPC 4.2 attends and participates in a public meeting, without their attorney, but there are other attorneys present, what are the restrictions on the other attorneys with regards to attending and participating in public meetings and regarding their conduct with the client in question?

The committee opined as follows:

RPC 4.2 prohibits a lawyer from communicating with a represented party concerning the subject of the representation “[i]n representing a client.” The prohibition of RPC 4.2 thus depends on the existence of an attorney-client relationship and a communication in the context of the representation. Under Washington law, an attorney-client relationship is a function of whether the attorney`s advice or assistance is sought and received on legal matters.

The inquirer stated that he is employed by a private nonprofit association only as a policy analyst and lobbyist. He stated that he has no attorney-client relationship with the association or its members. He asks whether RPC 4.2 applies to his communications in such a capacity. The committee responds to the inquiry by assuming the accuracy of these representations. Absent an attorney-client relationship with the organization that employs the inquirer or with its members, RPC 4.2 does not govern the inquirer’s communications on behalf of the organization.

The RPC Committee does not reach the remaining questions, as they relate to the conduct of others or describe hypothetical and abstract circumstances. The function of the RPC Committee is to advise members of the Bar upon the ethical propriety of their own contemplated professional conduct.