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In Legal Terms
- Spring Issue 2004
Counties Should Protect
Their Right to Counsel One of the strongest
protections afforded to a represented party in a legal matter under the Alabama
State Bar's Rules of Professional Conduct is the Rule 4.2, which provides that
a lawyer cannot communicate directly with a party he or she knows to be represented
by other counsel unless he or she has the consent of the party's lawyer. In other
words, a plaintiff's lawyer is prohibited from communicating directly with the
defendant in a lawsuit, unless the defendant's lawyer authorizes the communication.
In a recent advisory opinion issued by the Alabama
State Bar, it appears that there is an exception to this rule with regard to governmental
agencies. Alabama State Bar Advisory Opinion #RO-2003-03 provides that an attorney
representing a client in a matter with a governmental agency is not
required to obtain the consent of the agency's attorney prior to communicating
with an official of that agency. The opinion states that this situation falls
within an exception to the Rule authorizing communication where "authorized
by law", and cites the Comment to Rule 4.2, which provides that, "Communications
authorized by law include, for example, the right of a party to a controversy
with a government agency to speak with government officials about the matter."
The opinion relies in part on an analysis found in Modern Legal Ethics1
, which states that the consent of an adversary lawyer is particularly inappropriate
when the adversary is a government agency and that "Constitutional guarantees
of access to government and statutory policies encouraging government in the sunshine
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."
The theory behind this opinion and the "exception"
to the strict prohibition against a lawyer communicating directly with opposing
parties absent consent of that party's attorney is laudable. Yes, government should
be open and "in the sunshine". However, this opinion is still troubling
from the standpoint of the attorney representing a governmental agency, in part,
because it threatens to some extent the ability of the government lawyer to adequately
represent and protect his or her client, the government agency. There are protections
in the law provided even to public officials and public entities, and one goal
of legal representation is to ensure that officials and entities are properly
afforded those protections - and adequately counseled regarding the limits and
proper application of same. For example, while clearly the actions of the county
commission or any other public body should be in the open and records of that
entity shall be public, there are important exceptions to these rules, and part
of the government lawyer's role is to ensure that these exceptions are properly
applied both by the government agency and by those seeking information from that
agency. In many instances, these exceptions work to protect, not only the governmental
entity, but the rights of individuals who may or may not be public officials and
in some instances, the best interests and protection of the community as a whole.
Allowing parties in a legal controversy with the county commission or another
governmental entity to directly contact members of the governmental body - or
perhaps even employees of that body - possibly deprives, in part, the right to
adequately assert important legal protections available to that body under the
law, and as a result, the rights of others. This is just one concern. There are
many others.
One problem with this opinion
- in my opinion - is that it does not provide adequate guidance on how this exception
is intended to be applied. The reference in the opinion - and in the authorities
it cites - is to governmental agencies and governmental officials. However, the
opinion does not define either of those terms. I think it is clear that the county
commission is a governmental agency, but is the solid waste authority created
by the county commission a governmental agency as well? Who are governmental officials?
Clearly, each member of the county commission is a governmental official, but
is the county administrator? And what about the clerk typist in the county commission
office? These are questions which really should be answered for the benefit of
the government attorney, the attorney involved in action against the government,
and the government "officials" who may be approached by lawyers involved
in controversies involving the agency.
Hopefully,
these additional questions and concerns will be addressed over time to provide
everyone with better guidance about how to apply this exception to Rule 4.2. In
the meantime, it is very important that all county officials and employees keep
in mind that this exception authorizes the opposing lawyer to contact you directly
without first seeking the consent of your attorney. However, this Rule does not
require that you agree to communicate with that lawyer absent the consent and/or
presence of your retained counsel. If approached by a lawyer to discuss a case
or controversy, it is strongly recommended that you refrain from agreeing to any
such communication until you have had a chance to communicate with your
lawyer. It is also very important that employees in the office understand that
they should not speak directly with a party to any controversy or to a lawyer
for that party without first making their supervisor (and/or the county commission
members) aware of the contact and request to communicate. Direct communication
with opposing parties and/or their lawyers may often seem innocent and may be
viewed as an attempt to cooperate and resolve a controversy without the need for
prolonged or protracted litigation. However, the county attorney you have retained
has a fiduciary obligation to counsel, advise, and protect the county and where
possible, its officials and employees. In my opinion, all county officials (and
their employees on the county's behalf) should take careful advantage of that
obligation whenever necessary to protect the best interests of the county governing
body and the citizens it represents. Therefore, no county official - and no county
employee - should agree to communicate directly with a lawyer representing a party
in a real or threatened controversy with the county until and unless the county
attorney is aware of the proposed communication and has had an opportunity to
advise and counsel the county, and if necessary, to be present during any such
communication.
1. Modern Legal Ethics,
Charles W. Wolfram, West Publishing Co. (1986), § 11.6.2, p. 614, fn 58.
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