The “no contact rule” set out in Model Rule 4.2 can be a source of confusion for many lawyers. The rule prohibits a lawyer from communicating with a represented person about the subject of the representation without the consent of the other lawyer. We have discussed the rule before in the corporate context, but what about in the government context? Ohio Advisory Opinion 2022-03 provides precise guidance on the issue.
The “no-contact group”
Opinion 2022-03 provides that per Ohio Rule 4.2, a lawyer is prohibited “from directly communicating with employees and public officials who supervise direct, or regularly communicate with the government’s lawyer concerning a matter, or who have the authority to obligate the organization with respect to the matter, or whose act or omission in connection with the matter may be imputed to the organization”. These individuals are said to be included in the “no-contact group”; hence direct contact is generally impermissible. (The flipside is that direct contact with a person who does not fall into the “no-contact group” is generally permissible.)
Limitations on Rule 4.2 based the Constitutional right to petition government for redress of grievances
What about when the represented party is a government official, or employee deemed to be in the no contact group? May the Rules prohibit contact that infringes on their client’s “constitutional right to petition the government for the redress of grievances”? After looking to other jurisdictions for guidance, see Virginia’s Legal Ethics Opinion 1891, the Ohio opinion finds that lawyers may have contact with represented governmental clients. That exception is not unlimited however. It does not permit discussions of claims, for example. Contact is only permissible upon three conditions being met: (1) the communication must be based solely on a policy issue—not a claim; (2) the official or employee must possess the authority to take or recommend action concerning the policy matter; and (3) the lawyer is required to put the government counsel on notice of the intent to directly contact the government official. If all conditions are fulfilled, there is no requirement to obtain consent from government counsel.
The opinion concludes that lawyers are permitted to directly communicate with government officials or employees on behalf of a client during formal public meetings—though the topic must be on policy issues concerning the client. Consent is not required, and government counsel need not be present. Lawyers are nevertheless advised to identify themselves as representing their client, if possible, in advance of the meeting to allow for adequate time for the official or employee to consult with or ask counsel to attend.
On the opposite end of the spectrum, lawyers must obtain the consent of government counsel prior to any direct communication with government officers or employees regarding settlement negotiations. The recipient of any settlement offer is presumed to be in the “no-contact group.” Rather the lawyer is instructed to only propose the settlement (whether it be written or oral) to government counsel.
- As we mentioned before, the “no-contact” rule extends only to the subject of the representation.
- If the topic is off limits, don’t try to circumvent the rule by making the prohibited communication through the acts of another—a Rule 8.4(a)
- Don’t assume consent is implied—always ask. Simply hitting “reply all” to an email could land you in hot water even if opposing counsel had cc’d their client on the email directed to you first—see South Carolina’s Ethics Advisory Opinion 18-04 which concludes implied consent cannot be found in such scenario.
- Communication initiated by a represented party does not create an exception to the rule.
- Be careful not to overstep when advising your client how to communicate with other unrepresented parties involved in the matter.