The inquirer represents a plaintiff in litigation against a quasi-governmental agency (the "Agency"). During prior, related administrative proceedings, the Agency was represented by its inside General Counsel. Now that the matter has proceeded to litigation, the General Counsel has selected private counsel ("Outside Counsel") who has appeared as counsel of record for the Agency in the present litigation.
Inquirer seeks guidance from this Committee as to whether she can communicate with the General Counsel by sending a letter, with a copy to Outside Counsel at the same time, concerning the possibility of engaging in settlement discussions. Inquirer notes that the General Counsel is not a witness in the litigation. The General Counsel has not, however, entered an appearance on behalf of the Agency in the present litigation proceeding.
Based upon our review of Pennsylvania Rule of Professional Conduct 4.2, the Committee believes that it likely would not be a violation for the inquirer to contact the General Counsel directly in the circumstances described above. Although ordinarily Rule 4.2 prohibits direct contact with in-house counsel, in this case, because of the General Counsel's prior formal professional involvement, it could be legitimately concluded that she continues to represent the Agency in this matter and can herself consent to the communication. However, any statement or other facts indicating that the General Counsel no longer represents the Agency in this matter would render further communication with the General Counsel impermissible.
As a separate matter, in certain, limited circumstances, the inquirer might be able to communicate with the General Counsel, with the Outside Counsel's knowledge, under the "governmental agency" exception to Rule 4.2. Otherwise, the inquirer's options are limited.
Our analysis follows:
Rule 4.2 provides:
"In representing a client, a lawyer shall not communicate about the subject of the representation with a party 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 by law to do so." The proposed communication would be in the course of representing a client and would concern the representation. In addition, admittedly the Agency is presently represented.
Initially, the Committee believes that Rule 4.2 constrains the inquirer's ability to communicate with the General Counsel, subject to the Rule's exceptions. Rule 4.2 limits communications with a represented "party." Where the party is an organization, a question arises as to whether Rule 4.2 prohibits communications with particular individuals within the organization.
The Comment to Rule 4.2 states:
In the case of an organization, this Rule prohibits communications by a lawyer for one party concerning the matter in representation with persons having a managerial responsibility on behalf of the organization, and with any other person whose act or omission in connection with that matter may be imputed to the organization for purposes of civil or criminal liability or whose statement may constitute an admission on the part of the organization.
At a minimum, it appears that the General Counsel is a "person having managerial responsibility on behalf of the organization." Managerial responsibility includes responsibility for guiding litigation on behalf of an organization, and settlement discussions are a key component of litigation. Presumably, litigation is one of the General Counsel's primary areas of responsibility. Indeed, the inquirer appears to be interested in contacting the General Counsel precisely because of her perceived role within the Agency with respect to litigation. If the General Counsel did not have such a responsibility, inquirer would have little reason to contact her.
Nonetheless, General Counsel, at least in this case, represents the Agency for purposes of Rule 4.2. In general, in-house counsel do not represent an organization within the meaning of Rule 4.2 for the purposes of particular litigation. In-house counsel often retain private counsel to represent the organization so that in-house counsel themselves will not need to deal, on a detail or hands-on level, with particular litigation. In such a case, which we believe is the ordinary one, the organization is represented by private, outside counsel only, and not in-house counsel, for purposes of Rule 4.2.
We believe, however, that in certain circumstances, even though outside counsel has appeared on behalf of an organization to the exclusion of in-house counsel, in-house counsel may still represent the organization for purposes of Rule 4.2. One such circumstance is when, as here, in-house counsel represented the organization in a prior, related proceeding. In the present inquiry, the General Counsel (albeit perhaps through her subordinates) actively represented the Agency in the prior administrative proceedings. As a result of such prior representation, the inquirer can reasonably believe that the General Counsel continues to represent the Agency, even though Outside Counsel has entered an appearance on its behalf, absent other indications to the contrary.
Such indications to the contrary, however, constitute an important caveat. More specific facts may indicate that the General Counsel can no longer be considered to represent the Agency. For instance, where either Outside or the General Counsel specifically states that the inquirer may not contact the General Counsel directly, the inquirer may not do so and must cease previously initiated contacts. Likewise, where a substantial period of time has passed since Outside Counsel became involved, and the General Counsel has had no further involvement since then, the General Counsel may no longer represent the Agency for purposes of Rule 4.2. By contrast, even assuming the General Counsel has not entered an appearance, ongoing involvement by the General Counsel may be sufficient to establish that she still represents the organization.
To the extent the General Counsel represents the Agency for the purposes of Rule 4.2, the inquirer may contact the General Counsel directly without the consent of Outside Counsel. Such communication is permissible because the General Counsel's consent to the communication can be inferred from the representation and participation.
The Committee notes that Rule 4.2's exception for communications authorized by law may apply in the present circumstances because the Agency has some governmental characteristics. A key instance of the "authorized by law" exception to Rule 4.2, grounded in the right to petition, is communication with a government agency concerning a matter within its province. In ABA Formal Opinion 97-408, the ABA's Committee on Ethics and Professional Responsibility concluded that:
Rule 4.2 does not prohibit a lawyer representing a private party in a controversy with the government from communicating directly with governmental officials who have authority to take or recommend action in the matter, provided the communication is solely for the purpose of addressing a policy issue, including settling the controversy [emphasis added].
This exception might apply to the situation presented in the inquiry, depending on certain facts. For instance, an important consideration is whether the Agency, referred to as a quasi-governmental agency, is acting as a governmental instrumentality. If the litigation involves the governmental purpose for which it was organized, the government agency exception might apply. Where the litigation involves a collateral matter, such as employment with or personal injury by the agency, the exception likely will not apply. Likewise, the exception is more likely to apply where the prior administrative proceeding was before the Agency itself, rather than a separate, unrelated agency. The government agency exception, however, has an important limitation. The ABA Committee stated:
To give effect to the purposes of Rule 4.2 even [where direct communication is permitted], however, . . . the lawyer must afford government counsel reasonable advance notice of an intent to communicate, in order to afford an opportunity for the officials to obtain advice of counsel before entertaining the communication. ABA Formal Op. 97-408.
Thus, even if the governmental agency exception applies to allow the proposed communication in the situation presented in the inquiry, the inquirer must provide advance notice to Outside Counsel of his intent to communicate with the General Counsel.
In closing, the Committee advises that if, based on the above discussion, the inquirer cannot communicate directly with General Counsel on either of the bases set forth above, the inquirer could only communicate with the General Counsel with Outside Counsel's explicit consent. Such consent cannot be inferred from Outside Counsel's actions. For example, even if the inquirer has broached the topic of settlement with Outside Counsel and thinks the General Counsel would be interested in settlement, but has reason to believe that Outside Counsel has not passed inquirer's communication -- even a specific offer of settlement -- on to the General Counsel, inquirer cannot infer or avoid consent to contact the General Counsel directly. Likewise, sending a letter to both the General and Outside Counsels simultaneously does not constitute consent of counsel under Rule 4.2.