Opinion 2008-6
(April 30, 2008)

The inquirer represents a client who is involved in civil proceedings with a state, or executive-level, agency. Dealings are with both its Office of Chief Counsel and investigators who work as employees of that agency. The investigators, as part of their job responsibilities, engage in fact-finding upon opening cases where there is a report of non-compliance with certain state laws and/or the need for enforcement powers that that agency may assert against the inquirer’s client. Consequently, those investigators work hand-in-hand with the Office of Chief Counsel when enforcement proceedings are needed.

The inquirer asks if contact by him with any such investigator (whether by telephone, meeting, etc.) would violate Pennsylvania Rule of Professional Conduct (the "Rules") 4.2, or other relevant rules where the subject of the contact concerns the dispute or proceedings pending between the agency and the inquirer's client.

Pennsylvania Rule 4.2 Communication with Person Represented by Counsel provides that,

"In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order."

Comment [4] to that Rule provides that,

"This Rule does not prohibit communication with a represented person, or an employee or agent of such a person, concerning matters outside the representation. For example, the existence of a controversy between a government agency and a private party, or between two organizations, does not prohibit a lawyer for either from communicating with nonlawyer representatives of the other regarding a separate matter. Nor does this Rule preclude communication with a represented person who is seeking advice from a lawyer who is not otherwise representing a client in the matter. A lawyer may not make a communication prohibited by this Rule through the acts of another. See Rule 8.4(a). Parties to a matter may communicate directly with each other, and a lawyer is not prohibited from advising a client concerning a communication that the client is legally entitled to make. Also, a lawyer having independent justification or legal authorization for communicating with a represented person is permitted to do so." [emphasis added]

Comment [7] to that Rule provides that,

"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 or whose act or omission in connection with the matter may be imputed to the organization for purposes of civil or criminal liability. Consent of the organization's lawyer is not required for communication with a former constituent. If a constituent of the organization is represented in the matter by his or her own counsel, the consent by that counsel to a communication will be sufficient for purposes of this Rule. Compare Rule 3.4(f). In communicating with a current or former constituent of an organization, a lawyer must not use methods of obtaining evidence that violate the legal rights of the organization. See Rule 4.4." [emphasis added]

The Committee is of the opinion that Rule 4.2 would prohibit the communication described for two reasons. First, as noted in Comment [4] to the Rule, communication outside the matter of representation with the agent or employee of a represented person, including the government, is specifically permitted. The obvious corollary is, and as the rule itself states, that when the communication concerns the subject of the representation, such communication is prohibited.

In addition, Comment [7] discusses the issue of an organizational party. The language in that Comment makes it clear that communication with an employee who regularly consults with the organization's lawyer concerning the matter is prohibited. This type of interaction which the inquirer wishes to have with the investigator — who works hand-in-hand with the Office of Chief Counsel — is the specific conduct which the comment prohibits.

Thus the inquirer is cautioned against any communication with the investigators involved in representing his client unless it is done with the express consent of an attorney within the agency or Chief Counsel's office who is authorized to provide such consent.

CAVEAT: The foregoing opinion is advisory only and is based upon the facts set forth above. The opinion is not binding upon the Disciplinary Board of the Supreme Court of Pennsylvania or any other Court. It carries only such weight as an appropriate reviewing authority may choose to give it.