The WSBA Committee on Professional Ethics recently released a new advisory opinion No. 201803 to address the contours of contacting government employees under Washington Rule of Professional Conduct 4.2.
The rule generally prohibits communication with a person whom the contacting lawyer “knows to be represented by another lawyer in the matter[.]” Under Wright v. Group Health Hospital, 103 Wn.2d 192, 691 P.2d 564 (1984), the “no contact” rule applies in the entity setting and generally prohibits direct communications with entity employees who are “speaking agents” in an evidentiary sense for the entity. The rationale under Wright is that speaking agents are encompassed within entity counsel’s representation and, therefore, are “off limits” from direct contact outside of formal discovery—typically a deposition.
As a practical matter, Wright’s “speaking agent” test ordinarily draws a relatively tight circle around high-level management: “We hold the best interpretation of ‘party’ in litigation involving corporations is only those employees who have the legal authority to ‘bind’ the corporation in a legal evidentiary sense[.]” 103 Wn.2d at 200. Under Wright, occurrence witnesses who neither fall with entity counsel’s representation nor have their own lawyers may be contacted directly through an informal interview, for example.
When the RPCs were comprehensively revised in 2006, the amendments included a new Washington-specific Comment 10 to RPC 4.2 that essentially “codified” Wright by concluding that “[w]hether and how lawyers may communicate with employees of an adverse party is governed by Wright[.]” The same package of amendments in 2006 also included a Washington-modified (from the ABA formulation) Comment 7 to RPC 4.2 that echoes the nub of Wright: “In the case of a represented organization, this Rule prohibits communications with a constituent of the organization who supervises, directs or regularly consults with the organization’s lawyer concerning the matter or has authority to obligate the organization with respect to the matter.”
The new advisory opinion concludes that Wright applies with equal measure in the governmental context as articulated in Comments 7 and 10 to RPC 4.2. The advisory opinion, therefore, finds (at 2): “If an employee is not in that limited class of persons, RPC 4.2 does not apply to the communication.” Advisory Opinion 201803 also notes (at 2) that “[a] government lawyer may not instruct all agency employees not to have ex parte contacts with outside lawyers.” In that respect, too, the opinion mirrors Wright. However, if an individual employee is also represented—as is often the case when a litigation opponent is attempting to impute a governmental employee’s act or omission to the agency employer—then Advisory Opinion 201803 finds (at 2) that direct contact is prohibited: “[A]n opposing counsel who knows that the government lawyer represents an individual government employee may not contact that employee.” The new advisory opinion summarizes (at 2) the application of RPC 4.2 in the governmental context:
“Thus, if . . . low-level government employees do not supervise, direct or regularly consult with the government lawyer concerning the matter, do not have authority to obligate the government with respect to the matter, and are not individually represented by the government lawyer, the opposing lawyer may contact those employees directly.”
In a separate section, Advisory Opinion 201803 notes that, in light of the lack of controlling Washington appellate authority, the opinion does not take a position whether the constitutional right to petition the government permits an opposing counsel to contact a represented government employee directly under the “authorized by law” exception to RPC 4.2.
Advisory Opinion 201803 and other recent advisory opinions can be found on the Advisory Opinions database.
Mark Fucile. Mark handles professional responsibility, regulatory and attorney-client privilege matters throughout the Northwest. He has chaired the WSBA Committee on Professional Ethics and is a co-editor of the Bar’s publications “Law of Lawyering in Washington” and the Legal Ethics Deskbook. He can be reached at 503-224-4895 or mark@frllp.com.
