00-6.
Court | Kansas |
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...
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