Ethics Opinion 340: Contacts with Government Officials In Litigated Matters

Under D.C. Rule 4.2(d), a lawyer representing a client in a dispute being litigated against a government agency may contact a government official within that agency without the prior consent of the government’s counsel to discuss substantive legal issues, so long as the lawyer identifies himself and indicates that he is representing a party adverse to the government. In addition, the lawyer may also contact officials at other government agencies who have the authority to affect the government’s position in the litigation concerning matters, provided that the lawyer makes the same disclosures as stated above. The lawyer cannot, however, contact government officials either within the agency involved in the litigation or elsewhere concerning routine discovery matters, scheduling issues or the like, absent the consent of government counsel.

Applicable Rules

Inquiry
We have received an inquiry from an attorney representing an agency of the United States Government concerning the interpretation of D.C. Rule 4.2 governing contacts with represented persons. The attorney is employed by a government agency that frequently finds itself in contract disputes with private entities that provide services to the agency. In these disputes, according to the inquirer, the government contracting officer has the authority to resolve or settle the dispute on behalf of the government. The inquirer requests guidance on when and under what circumstances attorneys for the adverse party may contact the government contracting officer concerning the dispute, and whether they may do so without the consent of the attorneys representing the government agency. Specifically, the inquirer asks whether a private attorney representing the agency’s adversary can contact the government contracting officer concerning legal arguments contained in the government’s court filings absent consent of the government attorney in the matter.

The inquirer also asks whether contacts, again without the consent of the government attorney, can take place between attorneys for private entities in a dispute with the government and government officials who are not employed by the agency involved but who nevertheless could, by virtue of their positions, affect the government’s position in the dispute.

Background
D.C. Rule 4.2 generally prohibits communications between a lawyer and persons represented by counsel about the subject of the representation absent the consent of the represented person’s counsel. “Person” for the purposes of the Rule includes organizations and specifically covers those individuals within an organization who have “the authority to bind [the] organization” as to the particular matter at issue. D.C. Rule 4.2(c). As we explained in Opinion 80, the government officials “who are deemed to be government ‘parties’ with whom communications under the rule are restricted are quite limited, including only those persons who have the power to commit or bind the government with respect to the matter in question.” D.C. Ethics Op. 80 (1979) (interpreting DR-7-104(A)(1)).

The purpose of Rule 4.2 as it relates both to represented individuals and organizations is to “protect[ ] represented persons unschooled in the law from direct communications from counsel for an adverse person.” D.C. Rule 4.2, Comment [5]; see also D.C. Ethics Op. 331 (2005) (recognizing the “basic purpose” of Rule 4.2 “is to prevent a client, who on the one hand is presumed to be relatively unsophisticated legally but who on the other hand has ultimate substantive control over the matter, from making uninformed or otherwise irrational decisions as a result of undue pressure from opposing counsel”) (internal quotations omitted) The concept embodied in Rule 4.2 is not a novel one and was reflected in the Code of Professional Responsibility. See DR 7-104 (prohibiting communication by a lawyer with “a party he knows to be represented by a lawyer in [the] matter”). In this jurisdiction, the general prohibition stated in Rule 4.2 is subject to a number of exceptions. For example, Comment [5] allows a lawyer to contact in-house counsel of an organization without the consent of outside counsel representing the organization. See also D.C. Ethics Op. 331.

This inquiry involves the exception contained in D.C. Rule 4.2(d) that permits contacts without the consent of counsel for the government between a lawyer and “government officials who have the authority to redress grievances of the lawyer’s client,” provided that the lawyer discloses to the government official “both the lawyer’s identity and the fact that the lawyer represents a party that is adverse” to the government.[1] The exception stated in Rule 4.2(d) is not found in the current or prior versions of the ABA Model Rules. However, Comment [5] to Model Rule 4.2 provides that “[c]ommunications authorized by law [and thus exempt from the restrictions of the Rule] may include communications by a lawyer on behalf of a client who is exercising a constitutional or other legal right to communicate with the government.” See also ABA Formal Op. 97-408 (authorizing communication with government officials represented by counsel “provided that the sole purpose of the lawyer’s communication is to address a policy issue”).

The adoption of the exception concerning government officials contained in D.C. Rule 4.2(d) has been the subject of extensive debate and discussion, much of it decades ago. In 1975, we received an inquiry concerning whether or not Rule 4.2’s predecessor, DR 7-104(A)(1), applied to contacts with government officials. At that time, DR 7-104(A)(1) simply prohibited communications by a lawyer with a represented party, and, unlike the current Rule, did not contain any language excepting government agencies or officials.[2] We felt that the matter was sufficiently important that we published a tentative draft opinion and solicited comments on that opinion. See D.C. Ethics Op. 80 n.1. After some four years of consideration and a number of public comments, we released Opinion 80, which concluded that the then-existing rule prohibited contact, absent consent, with “those . . . who have the power to commit or bind the government with respect to the subject matter in question.” Id. We recommended, however, that the rule be amended to eliminate the prohibition on contacting government officials absent consent.

Our recommendation was ultimately endorsed and adopted by the Jordan Committee, which made recommendations concerning the District of Columbia’s adoption of the ABA Model Rules. In its 1986 report to the Court of Appeals, the Jordan Committee recommended that Rule 4.2 be restricted to “non-governmental parties” and discussed the reasons for its recommendation at length:

Government officials, especially those who have significant decision making authority, are almost always capable of resisting any arguments or other suggestions that are not proper and genuinely persuasive. Moreover, any government official who is in a high enough position to make binding decisions can surely be relied upon to exercise . . . individual judgment as to whether to engage in such direct communications at all . . . .

Proposed Rules of Professional Conduct and Related Comments 187 (Nov. 19, 1986) (“Jordan Committee Report”). The Jordan Committee Report noted, among other reasons, that government agencies had “the power to protect themselves by adopting rules and regulations concerning communications between private attorneys and government officials.” Id. at 188.

In the public comment process that followed the release of the Jordan Committee Report, the exclusion of governmental parties from D.C. Rule 4.2 was again the subject of considerable comment. See Analysis of Comments Submitted to the District of Columbia Court of Appeals in Response to the Court’s Order of September 1, 1988. As a result of the comment process, the Court of Appeals modified the Jordan Committee’s original recommendation. The language restricting D.C. Rule 4.2 to “non-governmental parties” was deleted, and D.C. Rule 4.2(d), in its current form, was substituted along with what are now Comments [10] and [11]. Neither Rule 4.2(d) nor the relevant Comments have been amended since their adoption by the Court of Appeals in 1990.

We have addressed D.C. Rule 4.2(d) only once since 1990. In Opinion 280, the inquirer was an attorney who had represented a chiropractor before a District of Columbia licensing board in a proceeding that had concluded with a consent order. The inquirer felt that the board staff had acted improperly in the proceedings leading to the consent order and further understood that members of the board itself were unhappy with the staff “imposing its will on the board with respect to a number of matters.” D.C. Ethics Op. 280 (1998). The inquirer wished to discuss with an individual board member both the consent order reached in his client’s matter and the general dissatisfaction with the staff’s conduct. After reviewing Opinion 80 and discussing the subsequent treatment of the issue in the Jordan Committee Report, we concluded that the proposed contacts did not violate D.C. Rule 4.2. In support of our conclusion, we cited Comment [7] (now renumbered as Comment [11] but not otherwise amended), which explains that lawyers may bypass government counsel “with respect to genuine grievances.”

Discussion
The first question posed by the inquirer is whether it is permissible to communicate about substantive legal issues with a government contracting officer in a matter being litigated absent the consent of the government lawyer. The inquirer suggests a distinction between discussing basic policy positions of the government, concerning which non-consensual contacts are concededly authorized by D.C. Rule 4.2(d), and discussing substantive legal issues, concerning which prior consent should arguably be obtained. We do not find support for this distinction in D.C. Rule 4.2(d).

Contacts concerning substantive legal issues appear to fall within the rubric of “genuine grievances” rather than “routine disputes” relating to run-of-the-mill discovery and scheduling issues. The reference to a “basic policy position” in Comment [11] is preceded by the language “such as” and is thus simply illustrative of the type of “genuine grievances” that do not require prior consent. A “genuine grievance” can and frequently does pertain to substantive legal arguments advanced by the government. One of the virtues of Comment [11] is that the line that it draws between those contacts that require consent and those that do not is relatively easy to discern. Even if we were empowered to re-draw this line, we would hesitate before advocating an approach which distinguishes between “basic policy positions” and “substantive legal arguments.” One reason that a “basic policy position” can be “faulty”, and therefore a permissible subject of non-consensual contacts with government officials under Comment [11], is that it is based on flawed “substantive legal arguments.” The inquirer concedes that D.C. Rule 4.2 authorizes a lawyer to argue to a government official that the government’s position is faulty, but would not permit the lawyer to make any reference to the legal arguments made by either side. This seems to us unworkable in practice. In addition, making a distinction between “basic policy position[s]” and “substantive legal arguments” has no support in the language of D.C. Rule 4.2 and its accompanying Comments.

The second question asked by the inquirer concerns the extent to which a lawyer for a private party (without the consent of the government lawyer) may contact officials in other agencies or organizations who might affect the government’s position in the on-going litigation as part of an effort to further the cause of the lawyer’s client. In some instances, the inquirer posits that the government official contacted might not even be aware of the specific dispute in which the government is engaged or the particular issues that are being raised in the dispute. If the official contacted has the “authority to redress the grievances of the lawyer’s client” then the contact is within the scope of D.C. Rule 4.2(d), so long as the lawyer makes the appropriate disclosures required under D.C. Rule 4.2(b). If, on the other hand, the official contacted does not have the power to bind the agency in the matter, then the contact remains permissible absent consent because the government official is not a person represented in the matter. See Rule 4.2(c) (for organizations, the term “‘party’ or ‘person’” includes only those individuals who have “the authority to bind an organization as to the representation to which the communication relates.”); see also D.C. Ethics Op. 80 (limiting government officials covered by the rule to “only those persons who have the power to commit or bind the government to the matter in question”).[3] We note that even though we conclude that a lawyer may generally initiate contact with a government official, an official is not obligated to engage in the communication and may ask the lawyer to communicate with government counsel rather than directly with the official.