Opinion #181. Lawyer Contacting Municipal Officials as Agent for Unionized Employees

Issued by the Professional Ethics Commission

Date Issued: January 14, 2003

Facts

The Grievance Commission has asked for an opinion based on the following facts. The Maine Municipal Public Employee Labor Relation Act, 26 M.R.S.A. §§ 961-974 [“the Act”], and a union’s collective bargaining agreement allow individual public employees to be represented in a grievance proceeding by a designated agent. Attorney A is such a designated agent. The Act also provides for an informal conciliation process, the purpose of which is to encourage the parties to mediate the employment dispute. Designated agents who are not attorneys typically will contact police chiefs, town managers, and other municipal officials directly concerning the scheduling and conduct of disciplinary meetings and hearings.

Attorney A knows that Attorney B represents a municipality with respect to a particular employee’s grievance proceeding and that Attorney B objects to Attorney A’s direct contact with town officials regarding the employee’s grievance proceeding.

Question

In the above factual setting, does Bar Rule 3.6(f) prohibit Attorney A from directly contacting municipal officials concerning the disputed matter without first obtaining Attorney B’s consent?

Opinion

Rule 3.6(f) governs an attorney’s communications with an adverse party, and provides, in pertinent part, as follows:

During the course of representation of a client, a lawyer shall not communicate or cause another to communicate on the subject of the representation with a party the lawyer knows to be represented by another 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.

In Opinion No. 94, this Commission addressed the scope and applicability of this Rule when the adverse party was a municipality. See Opinion No. 94, Maine Manual on Professional Responsibility 0-323 (2000). In that opinion, we concluded that Rule 3.6(j), the precursor to current Rule 3.6(f),“bar[s] contact between counsel representing a party opposed to the municipality in a litigated matter and those officials of the municipality who have the responsibility of making decisions on the litigation and matters directly related to it.” Id. at 0-327. We also concluded that the Rule “bar[s] contact with those other officials, if any, who have the responsibility of communicating municipal policy and decisions to its attorney, receiving the attorney’s advice in the first instance, and directing the work of the municipality’s staff in preparing for litigation.”

We do not see any material difference between the factual situation in Opinion No. 94, which involved a matter being litigated in court, and the situation posed by this question, which involves a contested grievance proceeding. In each instance, there is a discrete dispute for which both the employer and the employee are represented, and an attorney has not consented to opposing counsel’s communications with the former’s clients. Assuming, as we do, that the municipal officials whom Attorney A would contact are those with sufficient levels of responsibility that they could not be directly contacted under the standard set forth in Opinion No. 94, in the absence of the Act we would therefore find no basis for the Rule’s permitting Attorney A to engage in such contacts in this case.

This leaves the question whether the “designated agent” provisions of the Act nevertheless dictate a different result.[1] Two possible arguments to this effect occur to us.

First, one might argue that the Act has the effect of rendering the lawyer’s conduct as something other than representation of a client by a lawyer. Because Rule 3.6(f) applies “[d]uring the course of representation of a client,” if Attorney A is not representing the employee or the union, then the prohibition of the Rule does not apply. The simple answer to this argument is that, even on the face of the Act itself, Lawyer A is representing the employee or the union. The Act refers to “designated agents” as “bargaining agents,” and defines such individuals as “any lawful organization, association or individual representative of such organization or association which has as its primary purpose the representation of employees in their employment relations with employers.” 26 M.R.S.A. § 962(2). Whenever a lawyer engages in the “representation” of an individual or other legal entity, that individual or entity becomes a client of the lawyer, even if a non-lawyer is permitted to engage in the same sort of representation. In Opinion No. 79, we stated that the “practice of law” has typically been interpreted as including services in fact performed by lawyers, even though non-lawyers may perform the same services.[2] See Opinion No. 79, Maine Manual on Professional Responsibility O-279, at O-280 (2000).

Second, one might argue that the Act authorizes the direct contact. Rule 3.6(f) allows communications by a lawyer with parties represented by counsel if such contact is “authorized by law.” Thus, for example, a lawyer may cause a person to serve a subpoena, or other process, directly on an opposing party represented by counsel because the law requires that process must be served directly. Here, however, while we recognize that the Act may permit certain conduct in order to achieve speedy conciliation, see, e.g., 26 M.R.S.A. § 965(e), nothing in the Act requires, or otherwise authorizes, direct contact with the municipal official for these purposes. Without more specific direction in the Act, or in some other statute, the contact of high-level municipal employees by Attorney A without Attorney B’s permission would violate Rule 3.6(f).[3]

In reaching this conclusion, we are conscious of the fact that prohibiting a lawyer from performing work that a non-lawyer could perform in the same circumstances might be considered as placing the lawyer at some disadvantage. When a client hires a lawyer, however, the client and others involved in the engagement justifiably expect that the lawyer will act in strict accordance with the Bar Rules. No less should be expected in the factual setting of this Opinion.


Footnotes

[1] Although it is not within the jurisdiction of the Professional Ethics Commission to interpret Maine statutes, we may assume an interpretation of the Act for purposes of addressing the ethics question. See Opinion No. 47, Maine Manual on Professional Responsibility 0-171 (2000).

[2] In Opinion No. 79, we also referenced the following explanation contained in ABA Formal Opinion 297:

[When] a person becomes a lawyer he takes on a mantle that he cannot thereafter take on or off as he pleases. Conduct in which he engages which involves the practice of law when engaged in by lawyers must be in accordance with the ethical standards of the profession if he is to retain his professional status. Even though a particular activity may be open to a layman, if such activity is the practice of law when engaged in by a lawyer, one who is a lawyer cannot free himself of the ethical restraints of the profession in carrying on such activity merely by announcing he is to be regarded as a layman for this particular purpose.

See Opinion No. 79, Maine Manual on Professional Responsibility 0-279, at 0-280 (2000).

[3] We note, without necessarily endorsing its views, that the ABA Standing Committee on Ethics and Professional Responsibility addressed the question whether certain communications by a private citizen’s attorney with government officials may be “authorized by law” because the communication itself would be construed as the exercise of the citizen’s constitutional right to petition the government. See A.B.A. Formal 45 Opinion 97-408 (Aug. 2, 1997), reprinted in ABA/BNA Lawyer’s Manual on Professional Conduct (1997 ed.) 39. That Committee has opined that Model Rule 4.2, identical to our Rule 3.6(f), permits communications with government officials with authority to take or recommend action in a matter, provided that the sole purpose of the communication is to address a policy issue. Id. 39. On the facts of this case, we have no basis to believe that Attorney A’s purpose, no less her sole purpose, in communicating with officials of the municipality represented by another lawyer would be to address a policy issue, rather than the specific facts regarding the employee’s grievance.


Enduring Ethics Opinion