Opinion #94. Communication with an Employee or Official of a Municipality

Issued by the Professional Ethics Commission

Date Issued: February 24, 1989

Question

The Commission has been asked to supplement its recently issued Opinion No. 90 by responding to the following questions:

  1. Will any communication from an attorney to an employee or official of a municipality concerning pending litigation in which the municipality is represented by counsel violate Bar Rule 3.6(j)?

  2. Will any direct communication from a lawyer to an employee or an official of a municipality concerning the business of the municipality, but not pending litigation, violate Bar Rule 3.6(j) when the municipality has appointed a municipal attorney, either salaried or an independent contractor?

The Commission has also been asked to express an opinion on the conduct of the municipal attorney involved in Opinion No. 90 in refusing to forward a communication from another attorney directed to his client. Because this is a request for an opinion on past conduct of someone other than the inquiring attorney, the Commission declines to respond for the reason stated in its Opinion No. 67.

Opinion

Question No. 1: Litigation Pending.

It seems that the ancestor of Bar Rule 3.6(j) was designed with individual clients primarily in mind. The application of the rule to incorporeal entity clients is complicated by the need to determine who will be deemed to represent the entity for purposes of the rule while allowing informal access to information. According to Drinker:

“His [the lawyer’s] duty not to deal directly with one represented by counsel does not apply to the interviewing of witnesses for the other party. . . . But Canon 9 probably precludes interviews of managing employees of a corporation having authority to bind it.” Drinker, Legal Ethics, Columbia University Press, 1953, p. 201.

Opinion No. 90 observed that most courts do not read disciplinary rules like Maine’s Bar Rule 3.6(j) as barring communication with all employees of an incorporeal entity when the entity, and not its employees, is the represented party. For all practical purposes most of the employees are like third party witnesses.

The decisions are not abundant, and they vary somewhat in the descriptive language used to distinguish between employees who will be treated as the alter‑ego of a corporate party and employees who will be treated as non‑party witnesses. Thus, one case has adopted a so‑called control group test, forbidding interviews with employees who are either responsible for making final decisions or have advisory roles such that final decisions are not made without reliance on their advice or opinions. Fair Automotive Repair, Inc. v. Car‑X Service Systems, Inc., 471 N.E.2d 554 (Ill. App. 1984). Another case formulated the rule as barring interviews with employees who have the right to speak for and bind the corporation. Wright v. Group Health Hospital, 691 P.2d 564 (Wash. 1984). In still another case, without stating a general rule, the Court barred interviews with the defendant’s President, the Chairman of the Board, and certain designated Plant Managers. Re FMC Corp., 430 F. Supp. 1108 (S.D. W. Va. 1977).

Some opinions, e.g. FMC Corp. in which the conduct of government counsel was under attack, mention with approval the precaution of identifying the interviewing attorney and disclosing the purpose of the interview. It is not clear that any of these steps have been regarded as essential. In none of these cases did the Court have a disciplinary issue before it. All involved attempts to invoke the Court’s power to control its own proceedings.

The overwhelming majority of advisory opinions from commissions like this one in other states holds that communication with non‑managerial employees of a corporate defendant is permissible, whether or not the subject of the communication is a matter in litigation. 57 Mich. St. B.J. 325, Informal Op. 266; 57 Mich. St. B.J. 310, Informal Op. 70 (O. Maru, Dig. B.A. Ethics Opinion[1] 11509); Md. Opinions, Informal Op. 78‑27 (1978) (Maru 11356); San Fran. B.A., Informal Op. 1973‑4 (Maru 10662); L.A. City, Op. 369 (1977) (Maru 10562); L.A. City, Informal Op. 1966‑6 (Maru 7832); 47 N.Y. St. B.J. 526, Op. 404 (1975) (Maru 9164); Alaska Op. 71‑1 (1971) (Maru 7473); 24 Or. St. B. Bull. 8, Op. 134 (1963) (Maru 3970); N.C. St. B. 97, Op. 184 (1956) (Maru 3208); N.C. St. B. 80, Op. 97 (1952) (Maru 3121); N.Y. City 350, Op. 613 (1942) (Maru 2769); N.Y. City 175, Op. 331 (1935) (Maru 2487); 1965 N.Y. Co. Y.B. 262, Op. 528 (Maru 2144); 36 Mich. St. B.J. 181, Op. 141 (1951) (Maru 1315); 3 Advoc. 3, Op. 21 (Idaho 1960) (Maru 845); 31 L.A. B. Bull. 267, Op. 234 (L.A. City B.A. 1956) (Maru 477); ABA Comm. on Ethics and Prof. Resp., Formal Op. 117 (1934); ABA Comm. on Ethics and Prof. Resp., Informal Op. 1377; ABA Comm. on Ethics and Prof. Resp., Informal Op. 1410.

None of these opinions describe a precise line between employees who may be interviewed and those who may not. Most of them use words such as clerks, manager, managerial, drivers, and the like to describe the employees who may or may not be interviewed. Only a few attempt to generalize. A 1977 Los Angeles County opinion (Op. 369, 11/23/77, Maru 10562) identified the following three factors as establishing that an employee would be equated with the corporation for purposes of the contact rule: 1) authority to negotiate or control the corporation’s decision on litigation; 2) authority to make an admission binding on the corporation; and, 3) access to confidential corporate information. In a slightly different vein, Alaska Opinion 71‑1, referring to a matter in litigation between a citizen and a government entity, would permit interviews with employees not “representing” the entity “in matters relating to the controversial matter.” ABA Inf. Opinions 1377 and 1410, the first dealing with a municipal corporation, the second with a business corporation, rest a distinction between permitted and prohibited contacts on whether the employees are able to “commit the corporation because of their authority as corporate officers or employees or for some other reason the law cloaks them with authority.” (ABA Inf. Op. 1410.)

The reasoning common to these myriad opinions is that the application of rules like Bar Rule 3.6(j) to a corporate (or government) party should be consistent with the purpose of the rule. According to C. Wolfram, Modern Legal Ethics, 1986, p. 613, that is:

to prevent improvident settlements and similarly major capitulations of legal position on the part of a momentarily uncounseled, but represented, party and to enable the corporation’s lawyer to maintain an effective lawyer‑client relationship with members of management.

The author would therefore prohibit contact with officials who have “the legal power to bind the corporation in the matter” and also with those “who are responsible for implementing the advice of the corporation’s lawyer.”

The Commission concurs in the principle underlying these decisions. There is no reason to inhibit counsel from communicating, investigating the facts, and preparing for trial, except to protect the other side from over‑reaching. Unfortunately none of the formulae advanced by courts, commissions or commentators are self‑executing. It will be no easier to identify a corporate or municipal officer with power “to bind” or “to commit” the corporation or municipality, or to be confident that an official lacks such power, when an attorney is trying to comply with Rule 3.6(j) than on any other occasion. Even if this Commission were empowered to opine on issues of law, it would be unable to pronounce one rule, or a reasonable number of rules, controlling all the situations within the scope of the question.

If a business corporation were involved the question would be one of agency; does the employee have express, implied or apparent authority to effect an improvident settlement or similar major capitulation of the client’s legal position? Each case would call for an independent decision on its own facts. No one municipal official, however, generally has the power to do these things. A settlement or a similar major capitulation ordinarily requires action by the council or other legislative body. 56 Am. Jur. 2d Municipal Corporations Sec. 811 (1971). The doctrine of apparent authority is not pertinent, since the municipality will almost never be estopped to deny the authority of someone purporting to act for it, other than counsel who have entered an appearance. Id. Sec. 528. It could, therefore, be argued that even in litigated matters direct communication between an attorney and officials of a represented municipal party should not be forbidden by the Bar Rules unless the attorney is addressing the legislative body in circumstances in which binding action without consulting the municipal attorney is a real possibility.

The other policy Wolfram identifies as underlying the rule gives us pause, however, although we have some difficulty reducing its implications to concrete terms. That is the objective of enabling the attorney for an incorporeal entity to maintain an effective attorney‑client relationship. Wolfram’s suggestion that this policy precludes opposing counsel from direct contact with employees who are “responsible for implementing the advice of the corporation’s lawyer” is unacceptable, because it bars contact with an indeterminate and potentially unlimited class of employees.

We prefer a more explicit description that should protect the legitimate interests of a municipality. We therefore conclude that Rule 3.6(j) will bar 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.[2] We conclude that the Rule will also bar 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 anticipate that this class will invariably include the employees whose conduct is involved in the litigation. They are witnesses as well as employees, subject to being interviewed, unless they are in the category of officials who will be deemed to represent the municipality or unless they are separately represented by counsel in the matter.[See, e.g., N.Y. City 175 (Op. 331, 2/28/35) Maru 2487] We recognize that a municipality could resort to merely colorable assignments of responsibility to block access to its employees, but we think that is unlikely since the municipality, or any other party presumably may direct its employees not to communicate with opposing counsel. In any event that problem may be reserved until it arises.

The Rule is also not violated when the nature of the communication is such as to qualify it as a communication “authorized by law.” We will not attempt to exhaust this category. Some of these communications are, however, necessitated by the litigation itself, such as summonses and other formal documents that require service upon a party for their efficacy.

Question No. 2: Litigation Not Pending.

Rule 3.6(j) cannot be invoked to inhibit communication by a lawyer unless the lawyer is in “the course of . . . representation of a client,” the communication concerns “the subject of the representation,” and the lawyer knows that the recipient is “a party” who is “represented by a lawyer in that matter.” Moreover, communications “authorized by law” are not precluded even if all these conditions otherwise exist. With no interpretive gloss, it is clear that Bar Rule 3.6(j) is not violated by all direct communications from a lawyer to a municipal official or employee about municipal business. Thus, the short answer to the second question is no.

We conclude that, unless the subject of a communication is actually in litigation, communications with government officers and employees, state or local, on behalf of a client will not violate Rule 3.6(j) unless the attorney initiating the communication is on notice that counsel for the municipality has undertaken to represent it in connection with the particular matter in question. Even when the attorney is on notice, the ban extends only to employees with whom communication would be forbidden if the matter were in litigation, as described in response to Question 1.

Any other rule would make the conduct of municipal business unreasonably cumbersome and would greatly increase its costs. Rule 3.6(j) is aimed at preventing overreaching by lawyers who might take advantage of the absence of an opponent’s counsel to effect a major capitulation. That risk is quite low when government agencies are involved because of the limited authority of administrators to bind the agency to a major capitulation. It would appear to be minimal when the matter has not reached the stage of referral to counsel for the agency or municipality.

Concurrence

One member of the Commission, although concurring in the result, would add the following comment.

In Opinion No. 90, the Commission recognized, but was not required to decide, whether rights asserted under the State or Federal Constitutions might constitute exceptions to the prohibitions contained in Rule 3.6(j). It is appropriate to note that the same considerations might give rise to such an exception with respect to the current inquiry, see C. Wolfram, Modern Legal Ethics, 1986, p. 615, n. 59. This is, as in Opinion No. 90, an issue which need not be decided, on the facts before us.


Footnotes

[1] Hereafter cited as Maru.

[2] Some opinions suggest that capacity to make an extra‑judicial statement that will be allowed in evidence as the admission of a party will place an employee out of bounds to opposing counsel. This class of employees is so broad and so ill defined that we decline to adopt such a criterion for government parties. Employees who can make an “admission” that will be incontestable as a matter of law, a very rare case when the party is an agency of government, are intended to be included in the classes described in the text.


Enduring Ethics Opinion

Enduring Ethics Opinion #94 [February 2013]