Question: May Attorney ethically make a public records request of a state agency where the state agency is an adverse party in a current claim by Attorney’s client against the agency and where the agency is represented by counsel in the matter?
Answer: The prohibition in Rule 4-4.2 of communication by an attorney about the subject of the litigation with a person the lawyer knows to be represented by counsel, absent consent of the other lawyer, or certain exceptions, extends to employees of a represented organization who supervise, direct, or consult with the organization’s lawyer; employees who have authority to bind the organization; and employees whose acts or omissions may be imputed to the organization. Comment [7].  Represented organizations whose employees are protected from contact by the rule include both public and private entities. Comment [1].  To the extent the public records request would constitute communication with an individual in one of the above categories, the communication is governed by Rule 4-4.2.  Per Rule 4-4.2, communication by Attorney with represented persons without the other lawyer’s consent is not prohibited where the communication is authorized by law or court order. See also Comments [4] and [5].  Whether any law authorizes Attorney’s client to request the information is a matter outside the scope of an informal opinion.  Attorney is prohibited from violating Rule 4-4.2 through the acts of another. Comment [4].  If Attorney is unsure whether a communication with a represented person is permissible, Attorney may seek a court order.  Comment [6].  If the person with whom Attorney would be communicating is not an individual in one of the three categories of Comment [7] or otherwise represented, Attorney must take care to ensure the communication complies with Rule 4-4.3.  Any conduct in the course of representing a client, including communication, must also comply with Rule 4-4.4(a).

Informal Opinions are ethics advisory opinions issued by the Office of Legal Ethics Counsel to members of the Bar about Rule 4 (Rules of Professional Conduct), Rule 5 (Complaints and Proceedings Thereon), and Rule 6 (Fees to Practice Law) pursuant to Missouri Supreme Court Rule 5.30(c). Written summaries of select Informal Opinions are published for informational purposes as determined by the Advisory Committee of the Supreme Court of Missouri pursuant to Rule 5.30(c). Informal opinion summaries are advisory in nature and are not binding. These opinions are published as an educational service and do not constitute legal advice.

To request an Informal Opinion, please visit: https://mo-legal-ethics.org/for lawyers/requesting-an-informal-advisory-opinion/.

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