Year 1988 Ethics Opinions
THE ASSOCIATION OF THE BAR
OF THE CITY OF NEW YORK
FORMAL OPINION 1988-8
COMMITTEE ON
PROFESSIONAL AND JUDICIAL ETHICS
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August 24, 1988
ACTION: Formal
Opinion
OPINION:
The inquirer represents a client
who has a dispute with a governmental agency. The agency has
retained private counsel for the matter. The inquirer has
requested the opportunity to submit comments to the head of the
agency regarding the agency's exercise of its authority in the
matter. The government's private counsel, however, advised the
inquirer that a staff attorney for the government agency objected
to the request, taking the position that such communication would
constitute an ethical violation. See DR 7-104; accord EC 7-18;
ABA Model Rule 4.2. The staff attorney indicated that the head of
the agency was acting in a private capacity in connection with
this matter, although he was authorized by statute to act in such
matters and he has utilized paid civil servants to administer the
relevant program.
The inquirer asks whether he may
contact the head of the governmental agency to request that, with
respect to his client's matter, the agency exercise its
discretionary authority favorably. The inquirer intends to notify
private counsel of any such contact and to provide counsel with
copies of whatever papers he submits. He notes that another
purpose of this communication will be to protest the position
that private parties should not contact the agency when the
latter has retained private counsel. The dispute with the agency
consists of, and the inquirer wishes to submit comments
concerning, the agency's denial of specific claims regarding his
client's matter and, in general, its policy regarding the denial
of pending and future claims under the program.
To the extent that the proposed
communication concerns the subject matter of the representation,
the inquiry is governed by DR 7-104(A)(1), which states:
During the course of his
representation of a client a lawyer shall not . . . communicate
or cause another to communicate on the subject of the
representation with a party he knows to be represented by a
lawyer in that matter unless he has the prior consent of the
lawyer representing such other party or is authorized by law to
do so.
Initially, we note that the
determination of whether the head of the agency is acting in a
private or an official capacity is one that the inquirer must
make, as it is a question of law and fact beyond our
jurisdiction.
As a general matter, DR
7-104(A)(1) permits direct communications with an adverse party
either with the consent of that party's counsel or when such
communications are authorized by law. The comment to ABA Model
Rule 4.2, which Rule is substantially identical to DR
7-104(A)(1), states that "[c]ommunications authorized by law
include . . . the right of a party to a controversy with a
governmental agency to speak with government officials about the
matter." In addition, we note that, although footnotes to
the Model Code are intended merely to relate the Code's
provisions to other sources (see ABA Model Code of Professional
Responsibility, Preamble and Preliminary Statement n.1), footnote
74 to DR 7-104 quotes what is now codified as California Rule
7-103. That Rule is similar to DR 7-104, and explicitly permits
"communications with a public officer, board, committee or
body."
In N.Y. City 80-46, we
specifically chose not to address the scope of DR 7-104(A)(1)
where a governmental party is involved. In N.Y. State 160 (1970),
however, the New York State Bar Association Committee on
Professional Ethics acknowledged that, because a governmental
unit has the same rights and responsibilities in a controversy as
does any other party, once there is an indication that the
government has designated counsel for a particular matter,
"all communications concerning that matter must thereafter
be made with the designated counsel except as provided by
law." (Emphasis added.) In a subsequent opinion, the State
Bar Committee determined that, because of the "overriding
public interest" in providing the public with access to the
government, DR 7-104(A)(1) should be read implicitly to create an
exception "to its otherwise broad prohibitions" when a
public body is involved. Accord C. Wolfram, Modern Legal Ethics
614-15 (1986) ("Constitutional guarantees of access to
government . . . seem hostile to a rule that prohibits a citizen
from access to an adversary governmental party without prior
clearance from the governmental party's lawyer."). In that
case, however, the inquiring attorney was permitted to speak with
a member of a public body who technically was not considered an
"adverse party," given that that person voted against
the decision that was contested. In addition, the opinion
indicates that the minority board member voluntarily chose to
communicate with the attorney.
In our opinion, should the
inquirer conclude that the head of the agency is acting in an
official capacity, then pursuant to the "authorized by
law" exception to DR 7-104, he may submit comments to the
head of the agency concerning the subject matter of the
representation, provided that he notifies the government's
private counsel of the intended communication and that he
provides counsel with copies of the submissions. In so deciding,
we have balanced carefully the competing interests of providing
the government with the same protections that are afforded to
other parties with the need to ensure relatively unrestricted
public access to government. See Note, DR 7-104 of the Code of
Professional Responsibility Applied to the Government
"Party," 61 Minn. L. Rev. 1007, 1033 (1977). Accord New
Mexico Bar Ass'n, Opinions, reprinted in 9 State B. N.M. Bull.
391 (1971) (deciding that DR 7-104 is satisfied when an attorney
notifies in advance opposing counsel of his intention to
communicate with the opposing party). If, however, the inquirer
concludes that the head of the agency is acting in a private
capacity, then he may not communicate with that person, unless he
has the consent of opposing counsel or is authorized by law to do
so.
