Advisory Opinion:
1984
Year Issued:
2002
RPC(s):
RPC 4.2
Subject:
RPC 4.2, restrictions on communication as lobbyist
The inquiring lawyer is employed by a private nonprofit association as a policy analyst and lobbyist, not as an attorney. He asks whether he violates RPC 4.2 by communicating with a statutorily created office, known as an ombudsman, responsible for investigating and resolving consumer complaints, monitoring legislation, educating consumers with respect to their rights, and public agencies with respect to consumers’ problems.
The inquiring lawyer was prompted to write the committee after receiving a letter from an attorney, who describes himself as being on retainer to the ombudsman, that stated that all future correspondence or communication to any ombudsman in this state, per RPC 4.2, must be directly with the ombudsman’s attorney only, unless otherwise authorized by that attorney.
The inquirer poses the following questions:
(1) Does RPC 4.2 apply to someone who is not employed as an attorney, despite the fact that they are a member of the bar?
(2) To what extent, if any, does RPC 4.2 apply in the context of the legislative and regulatory process?
(3) If someone has an attorney on retainer, are they always represented for the purposes of RPC 4.2?
(4) If the client claiming protection under RPC 4.2 attends and participates in a public meeting, without their attorney, but there are other attorneys present, what are the restrictions on the other attorneys with regards to attending and participating in public meetings and regarding their conduct with the client in question?
The committee opined as follows:
RPC 4.2 prohibits a lawyer from communicating with a represented party concerning the subject of the representation “[i]n representing a client.” The prohibition of RPC 4.2 thus depends on the existence of an attorney-client relationship and a communication in the context of the representation. Under Washington law, an attorney-client relationship is a function of whether the attorney`s advice or assistance is sought and received on legal matters.
The inquirer stated that he is employed by a private nonprofit association only as a policy analyst and lobbyist. He stated that he has no attorney-client relationship with the association or its members. He asks whether RPC 4.2 applies to his communications in such a capacity. The committee responds to the inquiry by assuming the accuracy of these representations. Absent an attorney-client relationship with the organization that employs the inquirer or with its members, RPC 4.2 does not govern the inquirer’s communications on behalf of the organization.
The RPC Committee does not reach the remaining questions, as they relate to the conduct of others or describe hypothetical and abstract circumstances. The function of the RPC Committee is to advise members of the Bar upon the ethical propriety of their own contemplated professional conduct.
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