71-1.

• Case Date: April 14, 1971
• Court: Alaska

Alaska Ethics Opinion 1971. 71-1. Ethics Opinion No. 71-1Propriety of Communication with an Employee of a Governmental Entity by a Lawyer Engaged in Litigation Against that Governmental Entity.The Committee has been asked for its opinion on the question of whether a lawyer engaged in litigation against a governmental entity may communicate with an employee of that entity on a subject related to the litigation without the consent of the government's lawyer. Before responding to this question, the Committee wishes to note that the Code of Professional Responsibility as adopted by the American Bar Association and as recommended for adoption to the Alaska Supreme Court by the Alaska Bar Association at its 1970 convention, has not yet been promulgated by the Alaska Supreme Court. Therefore, the existing authority for this opinion must be the Canons of Professional Ethics as originally promulgated by the Alaska Supreme Court. On the assumption that it would be helpful to the profession, however, the Committee will also express its opinion based upon the Code of Professional Responsibility. The Committee has been unable to locate any opinion, formal or informal, of the American Bar Association which disposes of the question posed, with particular reference to governmental entities. Since both Canon 9(see endnote 1) of the Canons of Professional Ethics, and DR 7-104(A)(1)(see endnote 2) of the Code of Professional Responsibility are expressed in terms of communication with an opposing party, the obvious problem is to what extent a party may be equated with its agents or employees. In the opinions of the American Bar Association and the Committee on Ethics of the Bar Association of the City of New York, an implicit distinction seems to have developed between the types of communication which may be engaged in, and the employees that can be communicated with. In several opinions of the Ethics Committee of the American Bar Association, all of which are rather old, a literal interpretation of the Canon was adopted, which strictly observed the distinction between the parties and employees of parties and therefore held that counsel was ethically permitted to interview employees of a party concerning the facts of the matter in dispute without the permission of opposing counsel, so long as no misrepresentation was made to the employee...