UPON THE REQUEST OF A MEMBER OF THE SOUTH CAROLINA BAR, THE ETHICS ADVISORY COMMITTEE HAS RENDERED THIS OPINION ON THE ETHICAL PROPRIETY OF THE INQUIRER鈥橲 CONTEMPLATED CONDUCT. THIS COMMITTEE HAS NO DISCIPLINARY AUTHORITY. LAWYER DISCIPLINE IS ADMINISTERED SOLELY BY THE SOUTH CAROLINA SUPREME COURT THROUGH ITS COMMISSION ON LAWYER CONDUCT.
Ethics Advisory Opinion 11-04
S.C. Rules of Professional Conduct: Rules 4.2, 8.4
Facts:
Inquirer is a member of the 91黑料爆料 currently working as an employee for a U.S. federal agency with the title of 鈥淔ederal Investigator.鈥� Inquirer鈥檚 job involves conducting administrative investigations of potential violations of certain federal laws. Where violations are found, Inquirer administers fines and/or collects money from the violator on behalf of aggrieved persons. Inquirer鈥檚 involvement with a target ends once litigation is initiated. Performance of these duties entails understanding and applying statutes and regulations and interacting on an adversarial basis with attorneys who represent the targets of investigations. While some investigators are attorneys, there is no requirement that investigators be attorneys, and many of them are not.
Some of the attorneys with whom Inquirer deals are unresponsive to Inquirer鈥檚 requests for information or opposed to Inquirer鈥檚 investigative findings. Inquirer has been encouraged by different supervisors to contact targets directly to convince them of the seriousness of the situation and attempt to resolve the investigation expeditiously. In the case of attorneys who are unresponsive, another factor is that the statute of limitations on the claim is running.
Question:
May Inquirer directly contact a target of an investigation who is represented by counsel?
Summary:
Yes. Rule 4.2 prohibits communication with a represented party by an attorney who is 鈥渞epresenting a client.鈥� As a federal investigator, Inquirer is not 鈥渞epresenting a client,鈥� and therefore the prohibition does not apply. However, Inquirer should take care to avoid overreaching.
Opinion
Rule 4.2, Communication with Person Represented by Counsel, provides:
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.
(emphasis added). Rule 4.2 is intended to protect represented persons from 鈥渙verreaching by other lawyers who are participating in the matter, interference by those lawyers with the client lawyer relationship and the uncounseled disclosure of information relating to the representation.鈥� Comment 1.
An attorney is bound by the applicable Rules of Professional Conduct regardless of whether he or she is acting as an attorney at any given point in time. Ethics Adv. Op. 86-10. Certain rules, however, by their terms apply only when a lawyer is acting in a representative capacity. Rule 4.2 is one such rule: the prohibition against communications with a represented person does not apply to an attorney who is not 鈥渞epresenting a client.鈥�
The ABA addressed the scope and application of Rule 4.2 at length in Formal Opinion 95-396 (1995). Although Opinion 95-396 primarily concerned the applicability of Rule 4.2 to pre-arrest investigations of criminal activity by prosecutors, it included a discussion of attorneys鈥� vicarious responsibility for the conduct of investigators. In that context, the ABA noted that 鈥渋nvestigators themselves are not directly subject to Rule 4.2, even if they happen to be admitted to the Bar (as many FBI agents are), because they are not, in their investigative activities, acting as lawyers: they are not 鈥榬epresenting a client.鈥欌�� See also 28 C.F.R. 搂 77.2(a) (excluding 鈥渁ttorneys employed as investigators鈥� from the definition of 鈥渁ttorney for the government鈥�).
This Committee addressed a question similar to the present inquiry in Ethics Opinion 92-07. There, an attorney wished to contact his wife鈥檚 former husband, who was represented by counsel, about matters concerning the attorney鈥檚 step-children. Recognizing that 鈥淩ule 4.2 appears to apply only to communications made by a lawyer while representing a client,鈥� the Committee opined that because the attorney was not representing his wife, Rule 4.2 did not apply. Other jurisdictions have applied this reasoning to various situations in which an attorney鈥檚 communications with a represented person are not made in a representative capacity. See, e.g., In re Mettler, 748 P.2d 1010 (Or. 1988) (securities examiner); Phil. Bar Ass鈥檔 Prof鈥檒 Guidance Comm鈥檔 Op. 2010-3 (court-appointed child advocate); N.D. Bar Ass鈥檔 Ethics Comm.,Op. No. 09-04 (bankruptcy trustee); Conn. Bar Ass鈥檔 Ethics Op. 97-23 (equal employment opportunity counselor/investigator).
The Committee concludes that Rule 4.2 does not forbid contact with a represented person by a federal investigator simply because the investigator happens to be an attorney (provided he or she is not acting at the direction of an attorney who represents the agency, see Rule 4.2 cmt. 4). At the same time, the mere fact that an attorney鈥檚 title is 鈥渋nvestigator鈥� does not make Rule 4.2 per se inapplicable. See Cf. Phila. Bar Ass鈥檔 Prof鈥檒 Guidance Comm鈥檔 Op. 2010-3 (concluding that Rule 4.2 applies to a guardian ad litem whose duties 鈥渁re in many respects coextensive with legal representation鈥�).
Additionally, Inquirer should be mindful of the policies underlying the rule and thus should take care to avoid overreaching and should not act in a manner that undermines a target鈥檚 relationship with counsel. The Committee also advises that Inquirer is bound by other applicable Rules of Professional Conduct, including Rule 8.4.
The situations here and in 92-07 differ from the Committee鈥檚 opinions addressing the conduct of attorneys who are pro se litigants. See Ethics Adv. Ops. 11-01, 86-10.
