State Bar of Nevada Ethics Opinion 54, January-11-2018

• Jurisdiction: Nevada
• Opinion Number: 54
• Date: 11 January 2018
• Subject Matter: Communication With Person Represented by Counsel

1

STATE BAR OF NEVADA

STANDING COMMITTEE ON

ETHICS AND PROFESSIONAL RESPONSIBILITY

Formal Opinion No. 54

QUESTION PRESENTED

Does an attorney violate Rule 4.2, which prohibits contact with a person who is represented

by counsel, by making public records requests to a state or local government agency or department

when the attorney is actively involved in litigation against that agency or department?

ANSWER

No, as long as the attorney otherwise observes the restrictions placed on communications

with represented parties.

DISCUSSION

Rule 4.2 of the Nevada Rules of Professional Conduct (NRPC) states:

In representing a client, a lawyer shall not communicate about the subject of the

representation with a person 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

to do so by law or a court order.

Thus, an attorney may not communicate with an officer or employee of a state or local

agency or department about the subject of litigation unless, inter alia, the attorney is otherwise

authorized by law to make the communication.

NRS 239.010(1) states that, with certain enumerated exceptions:

[A]ll public books and public records of a governmental entity must be open at all

times during office hours to inspection by any person, and may be fully copied or

an abstract or memorandum may be prepared from those public books and public

records. Any such copies, abstracts or memoranda may be used to supply the

general public with copies, abstracts or memoranda of the records or may be used

in any other way to the advantage of the governmental entity or of the general

public. This section does not supersede or in any manner affect the federal laws

governing copyrights or enlarge, diminish or affect in any other manner the rights

of a person in any written book or record which is copyrighted pursuant to federal

law.

For purposes of this opinion, the requested records are presumed to be public records

pursuant to the Public Records Act. The statute clearly and unequivocally states that public records

are available to inspection by "any person." There is no indication in Chapter 239 that attorneys