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IT IS IMPROPER FOR ANY ATTORNEY TO APPEAR ON BEHALF OF A CLIENT
BEFORE THE GOVERNING BOARD OF A PUBLIC INSTITUTION OR TO CONTACT
THE ADMINISTRATIVE OFFICIALS OF THE INSTITUTION TO PROMOTE COLLECTION
OF A JUDGMENT AGAINST THE INSTITUTION WHERE THE INSTITUTION IS REPRESENTED
BY LEGAL COUNSEL WITHOUT THE CONSENT OF THE INSTITUTION'S LEGAL
COUNSEL.
FACTS
A public institution existing by authority of the laws of the
State of Nebraska filed a lawsuit in Federal District Court against
several of its employees to determine if the employees were discriminated
against as to their wages on the basis of sex. The institution
is governed by a board consisting of members elected by the public.
Attorney A was hired by the institution to represent it in the
lawsuit. Attorney B was hired by the employees to defend them
in the suit. The District Court found in favor of the institution.
On appeal by the employees the Circuit Court of Appeals reversed
ordering that the employees be paid their back wages by the institution.
The institution appealed to the United States Supreme Court but
the court denied writ of certiorari.
The
institution has not paid the employees their back wages as ordered
by the court. Attorney B maintains that he has been unable to
procure satisfaction of the judgment by making demand on the institution
through Attorney A. Attorney B has not pursued collection of the
judgment through the courts. Attorney B has forwarded to Attorney
A a copy of a letter he proposes to send to the head administrative
official of the institution requesting immediate satisfaction
of the judgment. Attorney B also proposes to appear before the
governing board of the institution to request immediate satisfaction
of the judgment. Attorney A has objected to Attorney B directly
contacting the administrative official and to his appearing before
the board. Attorney A maintains that such contact is prohibited
by DR 7-104 (a)(1) of the Code of Professional Responsibility.
QUESTION PRESENTED
May an attorney who represents an employee of a public institution
make direct contact with the administrative officers and/or governing
board of the institution where the institution is represented by
legal counsel and where the subject matter of the contact is the
satisfaction of a judgment in favor of the employee and against
the institution.
APPLICABLE CODE PROVISIONS
EC 7-18 The legal system in its broadest
sense functions best when persons in need of legal advice or assistance
are represented by their own counsel. For this reason a lawyer should
not communicate on the subject matter of the representation of his
client with the person he knows to be represented in the matter
by a lawyer, unless pursuant to law or rule of court or unless he
has the consent of the lawyer for that person ...
DR 7-104 Communicating with one of adverse
interest.
(a) During the course
of his representation of a client a lawyer shall not:
(1) Communicate
or cause another to communicate on the subject of the representation
with a party he knows to be represented by a lawyer in that matter
unless he has the prior consent of the lawyer representing such
other party or is authorized by law to do so.
DISCUSSION
The question posed here has not been considered by either the Advisory
Committee of the Nebraska State Bar Association or the Committee
on Professional Ethics of the American Bar Association. In arriving
at a decision it was necessary that this Committee strike a balance
between two competing principles one of which is fundamental to
our democratic system of government and one of which is fundamental
to our system of adversary justice.
It is fundamental to a democratic society that citizens have access
to the governing boards of our public institutions and to the officers
of those institutions. It is important that each citizen be permitted
to confront those persons elected or appointed to govern our public
institutions with his problems and grievances. On the other hand
the legal profession has recognized throughout its modern history
that our adversary system functions best where the attorney for
one party to a controversy does not communicate directly with the
opposing party where the opposing party is also represented by legal
counsel.
The rule regarding contact between an attorney and an opposing party
represented by an attorney was first expounded in the early 1800's
by David Hoffman, a member of the Baltimore Bar. Hoffman's Resolution
XLIII states:
"I will never enter into any conversation with my opponent's
client relative to his claim or defense, except with the consent
and in the presence of his counsel."
The concept contained in the foregoing Resolution was embodied by
the American Bar Association in its Canon 9 in 1908. Canon 9 provided
in part that:
"A lawyer should not in any way communicate upon the subject
of a controversy with a party represented by counsel; much less
should he undertake to negotiate or compromise the matter with him,
but should deal only with his counsel...
This concept has more recently been expressed by the American Bar
Association in DR 7-104 and EC 7-18 of the Code of Professional
Responsibility.
Throughout their respective histories Canon 9 and later DR 7-104
have been strictly construed. The following is a compilation of
the major opinions of the American Bar Association interpreting
these provisions.
1. Opinions prohibiting the desired contact:
ABA Formal Opinion No. 108 - An attorney representing a plaintiff
may not interview the defendant in the absence of his counsel concerning
the facts of the case even if the defendant is willing to discuss
the matter.
ABA Formal Opinion No. 124 - An attorney may not negotiate a settlement
with an adverse party represented by counsel without the knowledge
and consent of such counsel.
ABA Formal Opinion No. 187 - It is improper for an attorney to interview
an adverse party with respect to the facts of the case without consent
of his counsel, despite the fact that such party will be a witness
at the trial.
See also ABA Informal Opinions 517, 123
and 570.
2. Opinions permitting
direct contact:
ABA Formal Opinion No. 66 - Proper for the defendant's attorney
to communicate directly with the president of plaintiff corporation
concerning the name of a corporate officer most familiar with a
subject to be covered by deposition where he had previously requested
the information from plaintiff's attorney and had obtained no response.
It was required that a copy of any such communication be given to
the attorney.
ABA Formal Opinion No. 117 - An attorney may interview employees
of the defendant who were witnesses to incident on which suit is
based.
ABA Informal Opinion No. 426 - An attorney may serve a legal notice
on an opposing party represented by counsel and may explain general
nature of notice but not contents to opposing party in absence of
his counsel. In this case the serving of notice on the opposing
party was permitted by statute.
ABA Informal Opinion No. 1348 - Improper for an attorney to send
copy of settlement offer to opposing party where he believes opposing
party's attorney is not relaying offers to his client. The Committee
suggests that where applicable statutes or procedural rules permit
service directly upon the opposing party such service is permissible
provided that opposing counsel is also served. The Committee also
suggests that where service through the court is provided for such
service should be utilized before direct contact is made.
ABA Informal Opinion No. 827 - The factual situation in this opinion
is somewhat analogous to the case at hand. In this opinion the ABA
Committee considered a New York County Bar Association opinion in
which the plaintiff had obtained a judgment in his favor. Defendant
wished to settle the case directly with plaintiff's attorney. Defendant's
attorney objected but would not proceed with settlement of judgment
until his fees had been paid. In this opinion the ABA Committee
concurred with the New York County Bar Association finding that
where the legal relationship between the defendant and his attorney
had effectively been terminated the plaintiff's attorney could settle
directly with defendant.
The following basic exceptions to Canon 9 are found in the foregoing
opinions. An attorney for one party may directly contact an opposing
party where the opposing party is represented by counsel:
1) Where the attorney for the opposing party
has given his consent to such contact.
2) Where the law authorizes such contact.
3) Where the attorney/client relationship
between the opposing party and his counsel has terminated.
The
first and second of these exceptions have subsequently been included
by the ABA in DR 7-104 of the Code of Professional Responsibility.
The third is so basic as to be self-evident.
In order that the question before this Committee be answered in
the affirmative it would be necessary for this Committee to create
an additional exception to DR 7-104. Should an attorney be permitted
to appear on behalf of a client before a public board concerning
litigation involving the client and the institution governed by
the board without the consent of the board's attorney? It is the
opinion of this Committee that such an exception should not be created
by interpretation.
As has been stated Canon 9 has been strictly construed throughout
its long history. From its inception in 1908 though subsequent revisions
the exception proposed here was never adopted. This Committee also
takes note of the fact that this exception was not incorporated
into the Code of Professional Responsibility which Code was adopted
only after extensive review and consideration by the American and
State Bar Associations. It is apparent that the ABA Committee which
drafted the Code considered such an exclusion. At note 74 to DR
7-104 the ABA Committee cited the following excerpt from the California
Business and Professions Code Section 6076 (West 1962):
"Rule 12 ... a member of the State Bar shall not communicate
with a party represented by counsel upon a subject of controversy,
in the absence and without the consent of such counsel. This rule
shall not apply to communications with a public officer, board,
committee or body."
Should this reference to the California exception be construed as
a tacit agreement by the ABA Committee with the California position?
We believe not. In note 1 to the Preamble and Preliminary Statement
of the Code the ABA Committee states:
"The footnotes are intended merely to enable the reader to
relate the provisions of this Code to the ABA Canons of Professional
Ethics adopted in 1908, as amended, the opinions of the ABA Committee
on professional ethics, and a limited number of other sources; they
are not intended to be an annotation of the views taken by the ABA
Special Committee on Evaluation of Ethical Standards."
We can only construe the inclusion of the citation to the California
Code and the failure to include the exclusion in the Code to mean
that the ABA Committee, while recognizing the problem, did not see
fit to adopt the additional exclusion. In view of the ABA Committee's
failure to adopt the exclusion it is the opinion of this Committee
that the exclusion should not be adopted by interpretation. If such
an exclusion is desired by members of the Nebraska Bar it is our
belief that such a change should be made only through the formal
procedures adopted by the Nebraska Bar Association and the Nebraska
Supreme Court.
Although it is the opinion of this Committee that an attorney should
not, under DR 7-104, represent his client before the governing board
of a public institution without the consent of the board's attorney
where litigation is involved, this Committee does not believe that
the prohibition should extend to such an appearance where litigation
has not yet resulted from a controversy or where the litigation
has been completely terminated.
As previously stated, free access to public boards and institutions
is fundamental to our society. In many instances the interests of
the parties appearing before the boards will be adverse to or conflicting
with positions or policies adopted by the boards. In addition, most,
if not all, public boards are represented to some extent by an attorney.
If DR 7-104 were to be strictly interpreted no person taking a stand
opposed to that of a public board could appear by his attorney before
that board without the consent of the board's attorney. A person
desiring to make his position known would be forced to choose between
appearing individually without benefit of counsel or not appearing
at all. This interpretation would prohibit appearances of persons
by their attorneys before city councils, county boards, state administrative
boards and commissions and even the state legislature itself if
a controversy were involved. It is obvious that such a result was
not intended by the ABA Committee who drafted EC 7-18 and DR 7-104.
Therefore, it is the opinion of this Committee that an attorney
may represent his client before the governing board of a public
institution without authorization from the board's attorney prior
to the time that litigation is commenced or after any litigation
has been completely terminated.
SUMMARY
It is the opinion of this Committee that the following general rules
should be applied by an attorney to determine if his proposed contact
with a public institution or its governing board is ethical:
1. It is improper for an attorney during
the course of his representation of a client in a controversy with
a public institution to appear before the governing board of the
institution or to contact an administrative official of the institution
for the purpose of discussing the controversy without the consent
of the attorney for the board or institution where the controversy
has resulted in litigation and the litigation is pending.
2. It is proper for an attorney during the
course of his representation of a client in a controversy with a
public institution to appear before the governing board or to contact
an administrative official of the institution for the purpose of
discussing the controversy without the consent of the attorney for
the board or institution where the controversy has not resulted
in litigation or where resulting litigation has been completely
terminted.
3. If litigation is pending an attorney may
represent his client before the governing board or contact an administrative
official as set forth in Rule 1 above if:
a) He has been authorized
to do so by the attorney for the board or institution.
b) He
is authorized by law to do so.
c) The matter in litigation has been reduced
to final judgment and the legal relationship between the board
and its attorney has been terminated.
4. If an attorney has been authorized or
is permitted under the rules set forth in Rule 3 above to appear
before the governing board or to contact an administrative official
of the institution the attorney should always act within the bounds
of professional courtesy to the opposing attorney by forwarding
to the opposing attorney copies of all direct correspendence with
the board and by giving the opposing attorney notice of all planned
appearances before the board or meetings with the administrative
official.
In the present case it appears that although the controversy has
been litigated to a final judgment, Attorney A is still actively
representing the public institution. Under the above rules any
direct contact between Attorney B and the board or an administrative
official of the institution for the purpose of promoting payment
of the judgment would be improper without the consent of the institution's
attorney.
It is also the opinion of this Committee that where legal remedies
exist they should be first exhausted by an attorney prior to his
making any authorized direct contact with the opposing party.
In the present case if Attorney B is unable, in his estimation,
to make satisfactory progress toward satisfaction of the judgment
by making demands on Attorney A he should pursue all legal remedies
for the satisfaction of the judgment notwithstanding the additional
costs to his client.
76-2
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