Opinion #90. Written Communication with Amicus Curiae Regarding Matter in Litigation

Issued by the Professional Ethics Commission

Date Issued: August 31, 1988

Question

The Commission has been asked whether Bar Rule 3 (Code of Professional Responsibility) would be violated if a lawyer were to send each member of the council of a municipality a written communication protesting the legal position taken by the municipality in a brief filed with the Law Court as amicus curiae. The inquiring attorney represents another municipality, which is a party to the appeal in which the amicus brief was filed. The issue argued in the amicus brief concerned the scope of certain municipal regulatory powers. The amicus municipality was and is represented by its general counsel. The amicus municipality’s attorney was furnished with a copy of the proposed communication and asked to forward it to each member of the council. He refused and now takes the position that it would be improper for the inquiring attorney to deliver the communication directly and for him to do so as intermediary.

Opinion

The Commission has concluded that sending such a communication to the council of a municipality in the circumstances presented by the question could violate Bar Rule 3.6(j), which provides:

(j) Communicating with Adverse Party. 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.

The Commission’s conclusion that Rule 3.6(j) is applicable in this case is limited to the fact situation presented, which involved a matter in litigation, and the Commission expresses no opinion as to other situations involving communication with a government agency. The Commission’s opinion also does not, for reasons hereafter explained, exclude the possibility that a direct communication with government may be protected by the First Amendment, thus “authorized by law,” and allowed by the final clause of the Rule.

There is no doubt the proposed communication has occurred during the course of representation of the inquiring lawyer’s client and concerns the subject of the representation. Moreover, it is a communication “with a party he knows to be represented by a lawyer in that matter,” and the recipient’s lawyer has refused to consent. Although the municipality is but an amicus and thus in one sense is not technically a party to the appeal [4 Am. Jur. 2d “Amicus Curiae,” Sec. 3, p. 111], the rule has never been limited to litigation and other situations in which the participants are formal parties. The term “party” in the rule includes any kind of interest in the matter.

The purpose of Rule 3.6(j) has often been explained as the prevention of overreaching and improvident action by one who is temporarily without access to professional advice. [Annotated Code of Professional Responsibility, A.B.F., 1979, pp. 332‑33; Wolfram, Modern Legal Ethics, West, 1986, p. 613; Anno. “Communication with Party Represented by Counsel as Ground for Disciplining Attorney,” 26 ALR 4th 102, and cases cited therein.] In the classical case that action will take the form of a settlement decision [e.g., In re Mussman’s Case, 286 A.2d 614 (N.H. 1971)], an admission, the disclosure of a confidence, or some other major impairment or alteration of position. It is evident that not all of these risks are significant in the present case. For example, as an amicus with an interest solely in questions of law, the recipient municipality appears to have nothing to settle, nothing to admit and no confidence to disclose. Nonetheless, even though its brief has evidently been filed with the Court, we are unable to say that the risk of an improvident change of position by the municipal legislative body, rushing into action without the benefit of its counsel’s advice, is nonexistent. The rule on its face applies; it is not for this Commission to create exceptions by interpretation.

Similar considerations dictate that we deem communication with the municipal legislative body to be within the scope of the rule. When the party is a corporation or other incorporeal entity, the prohibited contacts have generally been limited to officers and employees who have the authority to commit the entity, either to an agreement or to an admission. [In re FMC Corp., 430 F. Supp. 1108 (S.D.W.Vir. 1977); Anno. “Right of Attorney to Conduct Ex Parte Interviews with Corporate Party’s Nonmanagement Employees,” 50 ALR 4th 652, and cases cited therein; Wolfram, supra, p. 613; Drinker, Legal Ethics, Columbia Univ. 1953, p. 201.] The legislative body of a municipality would seem to have such authority.

Some commentators have suggested doing away with the restriction on communicating with a represented party entirely when that party is the government. [Leubsdorf, “Communicating with Another Lawyer’s Client: the Lawyer’s Veto and the Client’s Interests,” 127 U. of Pa. Law Rev. 683.] Others have suggested retaining but limiting the rule in such cases. [Note: “DR 7‑104 of the Code of Professional Responsibility Applied to the Government `Party’,” 61 Minn. Law Rev. 1007.] Perhaps moved by such considerations, the authors of the Model Rules of Professional Conduct seem to have concluded that a communication with government will be “authorized by law.” [Comment to Rule 4.2, Communication with Person Represented by Counsel.]

A similar conclusion in the present case, arising from the exception in the Maine Rule for communications “authorized by law,” arguably could be based on the First Amendment right to petition and comparable state constitutional provisions. Art. 1, Sec. 15 of the Maine Constitution provides, in pertinent part:

The people have a right . . . to request, of either department of the government by petition or remonstrance, redress of their wrongs and grievances.

It is now well established that the power of the courts to regulate attorneys is qualified to a large extent by the First Amendment, presumably including the right to petition [e.g., In re Primus, 436 U.S. 412 (1978)].

There are three reasons why this Commission is unable to conclude that the communication presented to it is authorized by the law of the First Amendment. First, the phrase “authorized by law” was probably intended to cover communications such as a summons and complaint or a subpoena that must be served upon the party sought, or formal communications with an administrative agency or board, such as a municipal Board of Appeals, that has the general assistance, and on occasion the representation, of counsel in all its activities. Second, the Commission is not authorized to opine on issues of constitutional law. Third, in the present case the First Amendment may not be applicable, since the inquiring attorney was acting for his client, which is a municipality and as such may neither have First Amendment rights nor be able to represent its residents in asserting such rights.


Enduring Ethics Opinion