00-6.

CourtKansas
Kansas Ethics Opinion 2000. 00-6. 2000KBA Legal Ethics Opinion No. 00-6TOPIC: Communicating with a government official while representing a client. DIGEST: Communications between a lawyer representing a zoning applicant and an elected or appointed government official regarding the zoning matter fall under the "authorized by law" exception to Rule 4.2 and are therefore permissible. Lawyers should also consider Rule 3.9 in these situations, which we believe excludes the application of Rule 3.5(c) in the context of a zoning board process. Reference: KRPC 3.5, 3.9, and 4.2 FACTS The requesting lawyer's law firm frequently represents applicants in zoning cases. The legal staff representing a city has advised the requesting lawyer that it is their opinion that any communication with either an elected or appointed official who acts in an advisory or decision making capacity constitutes an improper and unethical ex parte communication and will subject the lawyer to the filing of a complaint with the Disciplinary Administrator. The requesting lawyer has abided by this policy but finds it to be inherently unfair because it denies an applicant with counsel the same ability to discuss a case with appointed and elected officials as is available to the public at large. The requesting lawyer seeks an advisory opinion as to whether communication on the part of counsel with an elected or appointed official in this context violates the Kansas Rules of Professional Conduct. ANALYSIS Kansas Rule of Professional Conduct 4.2 provides as follows: In representing a client, a lawyer shall not 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. Rule 4.2 does not impose a blanket prohibition against all contacts with any parties known to be represented by counsel. Rather, the Rule exempts contacts made where "the lawyer has the consent of the other lawyer or is authorized by law to do so." (Emphasis added.) Thus, contacts which are authorized by law -- even by attorneys representing adverse parties -- are appropriate and do not violate the rules of ethics. Contacts by attorneys with government agencies have been held to be "authorized by law." [1] The rules of professional conduct state that a lawyer having independent justification for communicating with the other party is permitted to do so. Communications authorized by law include, for example, the right of a party to a controversy with a government agency to speak with government officials about the matter. [2] Additionally, Kansas case law has established that communications made directly to a represented party in compliance with a statutory notice provision are authorized by law and do not violate Rule 4.2. [3] The "authorized by law" exception under Rule 4.2 includes those contacts made by a lawyer with a public or governmental body. That is because a citizen must always have access to his or her government, and because the First Amendment trumps any other considerations and concerns. When a governmental agency is the represented party, the Comment to Rule 4.2 recognizes that a party may "speak with governmental officials about the matter." The First Amendment right of petition brings such communications within the "authorized by law" exception to Rule 4.2. See American Canoe Ass'n, Inc. v. City of St. Albans, 18 F. Supp. 2d 620 (S.D. W.Va. 1998)(when citizens litigating against government agencies, direct contacts between agency officials and plaintiff's counsel regarding the matter in controversy is authorized by law as long as the formalities of the particular citizen-access statute allowing direct communications are met; however, plaintiff's counsel is required to prepare an inventory of any materials received from agencies under freedom of information statutes); Camden v. State of Maryland, 910 F. Supp. 1115 (D. Md. 1996)("Insofar as a party's right to speak with government officials about a controversy is concerned, Rule 4.2 has been uniformly interpreted to be inapplicable"). . . ABA, Annotated Model Rules of Professional Conduct 411 (1999). Another treatise makes the same observation: The anticommunication rule [Rule 4.2] is subject to certain exceptions. Communication is permitted when authorized by law, for example, a communication pursuant to court rule or court order. In our society, open access to government is a fundamental value, so the rule allows lawyers to communicate directly with government officials even when those officials are represented by counsel. Crystal, An Introduction to Professional Responsibility, Aspen Law and Business Publishing 275 (1998). The policy of allowing citizens to access government officials is consistent with the open meetings and open records statutes applicable in most states, including Kansas. [4] Of course, there are several dozen exceptions to the Kansas Open Records Act, including records of a government agency involved in litigation. [5] Open-meeting and open-file statutes reflect a public policy against secrecy in many areas of governmental activity. Moreover, unlike persons in private life, a public agency or officer has no autonomous right of confidentiality in communications related to governmental business. [6] It is also worth noting that the Kansas Administrative Procedures Act (KAPA) limits ex parte contact between parties and interested persons, and presiding officers. [7] Parties and interested parties cannot "directly or indirectly communicate in connection with any issue in that proceeding, while the proceeding is pending, with any person serving as presiding officer unless notice and an opportunity are given to all parties to participate in the communication." Violators are required to be turned into the appropriate disciplinary authorities. The North Carolina State Bar Ethics Committee has addressed this question, in the context of open records act requests, in its Opinion RPC 219, published on July 20, 1995 and approved on October 20, 1995, 1995 WL 853894. In this situation, a former county employee brought suit against his former employer (the county) and several county managers. The plaintiff employee's lawyer made a request, separate from the litigation, for certain public records. A request was made for an ethics advisory opinion on the propriety of such a request. The holding of the opinion is clear: Yes, a lawyer may communicate directly with the custodian of public records for the purpose of making a public records request regardless of whether the custodian's lawyer consents to the communication. . . . No exemption exists in the Act for requests for public records when the custodian is represented by legal counsel in a particular matter. Case law uniformly supports this position. In American Canoe Ass'n, Inc. v. City of St. Albans, 18 F. Supp. 2d 620 (S.D. W.Va. 1998), the parties were in litigation, and plaintiff's counsel sought to make direct contact with defendants' officials...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT