ARTICLE SUBMITTED FOR PUBLICATION IN FLORIDA BAR JOURNAL - PDF document

ARTICLE SUBMITTED FOR PUBLICATION IN FLORIDA BAR JOURNAL – ANTICIPATED PUBLICATION DATE: JUNE 2011 When Can a Lawyer Communicate With Your Client? By Marion J. Radson On December 10, 2010, The Florida Bar Board of Bar Governors unanimously approved Ethics Opinion 09-1. The Opinion concludes that a lawyer may not communicate with government officers, directors or employees who are directly involved or whose acts can be imputed to the government entity in a represented matter about the subject matter of the representation. To fully understand the Opinion, this article addresses the events leading up to the adoption of this Opinion, reviews previous Opinions that form the basis for Opinion 09-1, and discusses the application of the no contact rule for all attorneys. Events Leading to Opinion 09-1 A law firm regularly represented clients before a state agency known as the Office of Financial Regulation (“OFR”). 1 An attorney from the firm contacted employees of OFR to obtain information and, in some cases, statements to be used in potential administrative proceedings and litigation against the agency. OFR’s general counsel, in conjunction with the division director, informed the attorney that all communications with OFR employees must be made through the agency’s general counsel. The attorney initially sought a staff opinion from The Florida Bar’s ethics hotline. After being informed that communications must be made through OFR’s general counsel on represented matters, the attorney sought an informal Florida Bar Staff Opinion. 2 Florida Bar Ethics staff issued Opinion 28193 on July 15, 2008. The Staff Opinion concluded that Rule 4-4.2 prohibited the attorney from communicating with OFR employees

“who are in a managerial position or whose act or omission in connection with the (represented) matter may be imputed to the agency or entity, unless the agency’s attorney consents to the communication.” The attorney sought reconsideration of the Staff Opinion by the Professional Ethics Committee. The Professional Ethics Committee, through a subcommittee, developed a different opinion. As required by the rules of The Bar, notice was published soliciting comments on this proposed Opinion. In January 2010, the Committee, after hearing arguments on both sides of the issue, but particularly in opposition from representatives of the City, County and Local Government Law Section, the Government Lawyers Section, and the Florida Association of County Attorneys, approved the Opinion by a vote of 15-11. 3 Formal appeals to the Board of Governors were filed by OFR, the City, County and Local Government Law Section, and the Florida Association of County Attorneys (“appellants”). In accordance with the Board’s rules, the Board Review Committee first heard the appeal and made a recommendation to the Board of Governors. In the interim, the appellants worked with Bar staff to revise the Opinion to address specific objections. With one exception noted below, the Board Review Committee recommended approval of the revised Opinion. The Board of Governors, at its meeting on December 10, 2010 voted unanimously to approve Opinion 09-1. Opinion 09-1 involves the application of Rule 4-4.2. The fundamental principle underlying Rule 4-4.2 “Communication with Person Represented by Counsel”, commonly known as the “no contact rule”, is that a lawyer may not communicate with a represented person without the consent of the other person’s lawyer. The rationale behind the rule is to prevent interference with the attorney-client relationship and to

prevent a lawyer from persuading a represented person to act or make disclosures contrary to the person’s interests. 4 The Rule’s prohibition applies when two elements are met: (1) the communication relates to the subject matter of the representation; and (2) the lawyer has knowledge of the representation. Knowledge of the representation may be inferred from the circumstances. An exception to the prohibition permits an attorney to communicate with another attorney’s client “to meet the requirements of any court rule, statute or contract requiring notice or service of process directly on an adverse party.” 5 In these instances, contact is permitted and a copy must be provided to the adverse party’s attorney. The application of the Rule becomes complex in an organizational setting. Does the prohibition apply to every officer, employee or agent of the organization? If the organization retains full-time in-house counsel, does the Rule prohibit all communications on all matters? Can the in-house counsel bar all communications with all officers and employees of the organization? The application of the Rule becomes even more complex in the government context. Florida’s broad Government-in-the-Sunshine Law and expansive Public Records Law add additional layers of inquiry above those inherent in an organizational setting. Does a lawyer have the right to address a public body in a public meeting regarding a represented matter? Can a lawyer request public records directly from a public employee regarding a represented matter? Can a lawyer contact a government official to seek redress of a client’s claim or grievance before the government? These issues have been the topic of heated debate in Florida and around the country.

When does the prohibition begin? When does Rule 4-4.2 apply to prohibit communications with a represented person? Is it necessary for litigation or an administrative process to commence? The simple answer is no. The Rule applies when the attorney-client relationship is established. In Florida Ethics Opinion 78-4, which is cited for other purposes in Opinion 09-1, the Ethics Committee unanimously concluded that the Rule applies whenever the attorney-client relationship is established in regard to a particular matter. 6 Opinion 09-1 extends the prohibition to “…matters on which litigation has not yet commenced, as well as to specific transactional or non-litigation matters on which the agency’s lawyer is providing representation.” To whom does the prohibition apply in the corporate or government context? Florida Ethics Opinion 09-1 addresses to whom the prohibition applies in the government context. Opinion 09-1 relies on the conclusions reached in previous Florida Ethics Opinions. In Florida Ethics Opinion 78-4, the Committee concluded that prohibited communications extend to “officers, directors or managing agents” of a private corporation. The Committee did not extend the Rule to other employees “unless they have been directly involved in the incident or matter giving rise to the investigation or litigation.” In a later Florida Ethics Opinion, 87-2, the Committee applied the guidelines of Opinion 78-4 to government entities, extending the communication bar to any government employee whose acts or omissions in connection with the matter can be imputed to the government. The Committee declined to treat government entities differently from private entities despite public policy arguments based on the government’s responsibility to the public at large. Opinion 09-1 concludes that an attorney must obtain the consent of the government lawyer prior to communicating with a government officer, director or manager, as well as

employees who are directly involved in the matter. The bar extends to public officials or employees whose acts or omissions may be imputed to the state agency. Must a Communicating Attorney know that the person is represented? The application of Rule 4-4.2 presupposes that the attorney “knows” that the person is represented. The word “knows” is defined in the terminology section of the Rules as “actual knowledge of the fact in question. However, a person’s knowledge may be inferred from circumstances.” 7 Opinion 09-1 permits an attorney to communicate with government employees on “specific matters” that the attorney knows have not been referred to or handled by the government attorney. In that instance, Opinion 09-1 instructs an attorney to apply Rule 4-4.3 “Dealing with Unrepresented Persons.” 8 Rule 4-4.3 imposes a duty on an attorney to inquire whether a person is represented in a specific matter. In the government context, Opinion 09-1 concludes that if the attorney does not know whether the public official or employee is represented in the matter, the attorney “should inquire whether the person is represented in the matter” and “identify himself or herself to the public official or employee as a lawyer representing a client.” The summary of Opinion 09-1 includes cautionary language that the right to communicate directly with government officers and employees on matters unrelated to the specific legal representation must not be used as a “…vehicle for engaging in communications that are barred by the rule.” Additionally, the Comment to Rule 4-4.2 provides that a lawyer cannot evade the requirement of obtaining consent “by closing eyes to the obvious.”