August 16, 1991

ACTION: Formal Opinion

OPINION:

DR 7-104(A)(1) of the Lawyer's Code of Professional Responsibility (the "Code"), providing that during the course of representing a client a lawyer shall not "[c]ommunicate or cause another to communicate on the subject of the representation with a party the lawyer knows to be represented by a lawyer in that matter unless the lawyer has the prior consent of the lawyer representing such other party or is authorized by law to do so", has been the subject of considerable recent attention, especially concerning how it applies where the opposing party is an entity instead of an individual. Last year, the New York Court of Appeals, in Niesig v. Team I, 76 N.Y.2d 363, 374-75, 559 N.Y.S.2d 493, 498 (1990), discussed at length various issues arising under DR 7-104(A)(1) where, in a personal injury action, the plaintiff sought to have his counsel interview witnesses of the accident who were employees of the private company that was the defendant.

The present inquiry concerns whether the same restrictions of DR 7-104(A)(1) apply where the defendant in a lawsuit is a government agency. The inquirer represents a former prison (the "agency") employee challenging his discharge from the position of prison guard. The discharge resulted from an incident in which it is alleged that the client unjustifiably struck a prisoner. The client claims he acted in self-defense. The inquirer wishes to interview various government employees outside the presence of, and without notice to, the agency's counsel, including (i) guards who witnessed incident and (ii) agency officials who had supervisory responsibility over his client, such as a warden, and whose acts or omissions may be imputed to the agency for purposes of liability. The inquirer also asked about ex parte communications with agency officials who may have authority to settle the dispute.

Niesig clearly addresses the first category of interviewees -- the inquirer may interview guards who are merely witness to the incident, outside the presence of and without notice to the agency's counsel, so long as the inquirer clearly identifies himself and his interest to the persons being interviewed. As to agency supervisory officials whose acts or omissions may be imputed to the agency for purposes of liability, we conclude that the inquirer may not interview such persons outside the presence of and without notice to the agency's counsel. Finally, as to officials who have authority to settle the dispute, we conclude that DR 7-104(A)(1), as construed in Niesig, generally prohibits the inquirer from communicating with them outside the presence of the agency's counsel; however, certain communications with high level agency officials relating to "the subject of the representation" may be ethically permitted as authorized by the legal and constitutional rights of the lawyer and his or her client to petition or otherwise have access to the government.

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I

In Niesig, the Court of Appeals stated:

The test that best balances the competing interests, and incorporates the most desirable elements of the other approaches, is one that defines "party" to include corporate employees whose acts or omissions in the matter under inquiry are binding on the corporation (in effect, the corporation's "alter egos") or imputed to the corporation for purposes of its liability, or employees implementing the advice of counsel. All other employees may be interviewed informally.

Unlike a blanket ban or a "control group" test, this solution is specifically targeted at the problem addressed by DR 7-104(A)(1). The potential unfair advantage of extracting concessions and admissions from those who will bind the corporation is negated when employees with "speaking authority" for the corporation, and employees who are so closely identified with the interests of the corporate party as to be indistinguishable from it, are deemed "parties" for purposes of DR 7-104(A)(1). Concern for the protection of the attorney-client privilege prompts us also to include in the definition of "party" the corporate employees responsible for actually effectuating the advice of counsel in the matter [citations omitted].

In practical application, the test we adopt thus would prohibit direct communication by adversary counsel "with those officials, but only those, who have the legal power to bind the corporation in the matter or who are responsible for implementing the advice of the corporation's lawyer, or any member of the organization whose own interests are directly at stake in a representation." [Wolfram, Modern Legal Ethics § 11.6, at 613 (1986)]. This test would permit direct access to all other employees, and specifically -- as in the present case -- it would clearly permit direct access to employees who were merely witnesses to an event for which the corporate employer is sued.

The Court added that "it is of course assumed that attorneys would make their identity and interest known to interviewees and comport themselves ethically." 76 N.Y.2d at 376, 559 N.Y.2d at 499.

II

In N.Y. City 1988-8, a lawyer asked whether he might "submit comments" to the head of a governmental agency to request that, with respect to his client's matter, "the agency exercise its discretionary authority favorably." Id. at 1. Counsel for the agency had objected to such communication. We took the position that the Code permits a lawyer representing a client who has a dispute with a government agency to "submit comments to the head of the agency concerning the subject matter of the representation," provided the lawyer "notif[ies] the government's . . . counsel of the intended communication and . . . provide[s] counsel with copies of . . . [the] submissions." N.Y. City 1988-8 at 3. This judgment was based on our belief that there is an overriding public interest in providing the public with access to the government. We noted that "[t]he 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.'" Id. at 2.

However, we note that the communications approved in N.Y. City 1988-8 were specifically limited to comments intended to persuade an agency head to exercise discretionary authority in the resolution of a dispute. The lawyer whose inquiry we addressed did not seek to interview or to obtain the statement of any governmental official outside the presence of counsel for the government. In addition, he stated that he would provide counsel with copies of whatever papers he submitted. N.Y. City 1988-8 at 1. Thus, N.Y. City 1988-8 does not provide an answer to the second question posed by the present inquiry. n1

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n1 N.Y. City 1988-8 should not be read as suggesting a right to communicate with governmental officials any broader than that specifically approved in that opinion.

As we stated in N.Y. City 1988-8 at 3, "a governmental unit has the same rights and responsibilities in a controversy as does any other party." The New York State Bar Association takes the same view. See N.Y. State 160 (1970). Among the rights to which the government is entitled is the right to representation by counsel. We further note that DR 7-104(A)(1) does not distinguish between governmental and private parties. Its underlying rationale is to further the workings of the adversary system, regardless of the status of the parties involved. The government's right to representation might be impaired if DR 7-104(A)(1) were held never to apply to communications by an adversary lawyer with policy-making government officials. Thus, in the context of specific litigation, we conclude that DR 7-104(A)(1) applies where the opposing party is a government agency and that governmental employees deemed to be "parties" for purposes of that Rule are those individuals satisfying the test set out in Niesig.

Our Committee subscribes to the view that great weight must be given to the right of private citizens to seek information from and communicate with government officials. See 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."). Nonetheless, if a lawyer resorts to litigation to resolve a client's dispute with the government, the lawyer must submit to many rules of litigation which may impinge upon unrestricted free expression. One of the most basic of those rules, codified in DR 7-104(A)(1), says that a lawyer may not talk to the person he or she is suing without that person's lawyer being present. It is a simple rule of fair play, designed to prevent lawyers from taking advantage of uncounseled litigants who may not be fully aware of the consequences of their statements in the context of the litigation. It should apply to communications with high-ranking government officials as well as with corporate executives.

III

We recognize that DR 7-104(A)(1) provides a specific exemption for communications "authorized by law." Communications in this category obviously include those protected by the First Amendment. The Committee does not opine on questions of law, including questions of constitutional law, and expresses no view as to whether First Amendment rights might in any particular circumstance override DR 7-104(A)(1) as construed in this opinion. Some courts have held that First Amendment rights may override DR 7-104(A)(1) when lawyers for private litigants seek to communicate with government officials or employees in certain contexts during litigation. See, e.g., Lizotte v. New York City Health & Hospitals Corp., 85 Civ. 7548 (WK) (S.D.N.Y. March 13, 1990) (communication by plaintiffs' expert with municipal hospital emergency room staff during tour); Vega v. Bloomsburgh, 427 F. Supp. 593 (D. Mass. 1977) (communication by plaintiffs' counsel with non-policy making state officials responsible for implementing program at issue in lawsuit). The applicability of constitutional rights and their interplay with the policies served by DR 7-104(A)(1) may vary depending upon the nature of the claim asserted in a given action, the purposes sought to be served by the intended communication, and the status of the government official with whom the private litigant's lawyer wishes to communicate. Cf. N.Y. State 404 (1975) (counsel may communicate with members of a governmental board who voted against the policy being contested by counsel).

The right to petition the government for the redress of grievances can be implicated, despite the existence of pending litigation, where the private litigant's lawyer wishes to persuade a governmental decision-maker to interpret or apply governmental policy in a particular way. See Frey v. Department of Health and Human Services, 106 F.R.D. 32, 37 (E.D.N.Y. 1985) ("unlike a corporate party, the government also has a duty to advance the public's interest in achieving justice"). Nonetheless, it should be possible to reconcile this right with the values of fair play underlying DR 7-104(A)(1). We believe such a compromise would be achieved, for example, where counsel addresses written comments to the governmental decision-maker, with a copy sent to the official's counsel in the litigation and in which communication counsel clearly states that (i) the matter being addressed is in litigation and (ii) the official may wish to consult government counsel in the litigation before responding. Such a communication could include a request to meet with the public official, but the official's counsel in the litigation should be present at any such meeting.

Government lawyers should not be able to block all access to government officials to the point of interfering with the right to petition for redress, but neither should attorneys be allowed to approach uncounseled public officials who may not know exactly what cases are pending against them, the status of those cases, the consequences of those cases, or the consequences their statements may have in those cases. n2 A lawyer who believes that the First Amendment or other law justifies ex parte communications with government officials might be sanctioned, and possibly even disqualified, by a court that disagrees with that conclusion. See Papanicolaou v. Chase Manhattan Bank, N.A., 720 F. Supp. 1080, 1083-85 (S.D.N.Y. 1989); Zeller v. Bogue Electric Manufacturing Corp., 71 Civ. 5502 (RO) (S.D.N.Y. May 11, 1975). In fact, disqualification of the lawyer's entire firm or organization is a possibility. Papanicolaou, 720 F. Supp. at 1085-87; United States Football League v. National Football League, 605 F. Supp. 1448, 1466-68 (S.D.N.Y. 1985); Yaretsky v. Blum, 525 F. Supp. 24, 29-31 (S.D.N.Y. 1981). Since disqualification could result in serious harm to the client, it would be prudent for a lawyer desiring to have ex parte communications with government officials for purposes of a lawsuit to consider seeking permission from the court, on notice to the government, to conduct such interviews. See, e.g., New York State Association for Retarded Children v. Carey, 706 F.2d 956, 960-61 (2d Cir. 1983) (district court properly permitted plaintiffs' counsel, consultants and experts to interview staff of government facility, pursuant to court-imposed guidelines, during post-judgment tour to ascertain extent of defendant government's compliance).

n2 This opinion does not necessarily prohibit a lawyer for a private litigant from receiving information relevant to a litigated matter from a so-called "whistleblower". If a lawyer has not initiated the communication, one of the principal concerns underlying DR 7-104(A)(1) -- that a lawyer may exploit the disparity in legal skills between the lawyer and an unsuspecting lay person who is speaking outside the presence of counsel, see Papanicolaou v. Chase Manhattan Bank, N.A., 720 F. Supp. 1080, 1084 (S.D.N.Y. 1989), is diminished. In addition, First Amendment solicitude for communications initiated by "whistleblowers", expressing their disagreement with existing governmental policies or reporting instances of misconduct by governmental officials, is greater than for communications initiated by counsel in an effort to persuade officials to provide information. See Butterworth v. Smith, 110 S.Ct. 1376, 1381 (March 21, 1990) ("publication of information relating to alleged governmental misconduct" is "speech which has traditionally been recognized as lying at the core of the First Amendment"). Cf. Rodriguez v. Percell, 391 F. Supp. 38 (S.D.N.Y. 1975) (provision of New York City Charter prohibiting municipal employees from giving opinion evidence adverse to interests of the City, in any case in which the City is a party, violates the First Amendment).

There may be circumstances in which DR 7-104(A)(1) or other provisions of the Code could require a lawyer to limit or avoid communications initiated by a high-ranking policy maker. We do not address those questions in this opinion.

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