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 dash–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 dash–4.2.  Per Rule 4 dash–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 dash–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 dash–4.3.  Any conduct in the course of representing a client, including communication, must also comply with Rule 4 dash–4.4(a).

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