Editor's Note: This opinion was originally published as RPC 202 (Revised).
Communications with Elected Officials
Opinion rules that an attorney may communicate in writing with the members of an elected body that is represented by a lawyer in a matter if the purpose of the communication is to request that the matter be placed on the public meeting agenda of the elected body and a copy of the written communication is given to the attorney for the elected body.
Attorney A and Attorney B represented Clients X and Y before the town board of adjustment where they were successful in getting a sign variance. The town's attorney, acting on behalf of the town, filed an appeal in superior court of the variance granted by the board of adjustment. The appeal has been pending since 1991.
Attorneys A and B believe that the town lacks standing to file an appeal against its own board of adjustment. Also, Attorneys A and B believe that the case has become moot by the town's issuance of permit for the sign and the construction of the sign in 1991.
An intervening election changed the composition of the town council. The present council may not want to continue to pursue the appeal, given the expense and the questionable merits of the appeal. Attorney A and Attorney B wrote to the town attorney seeking his permission to petition the town council to drop the appeal. The town attorney refused to permit Attorney A and Attorney B to communicate with the members of the town council. Attorney A and Attorney B believe that their clients, as citizens and taxpayers, should have the right to petition their elected officials through their chosen legal representative. May Attorneys A and B petition the elected members of the town council, on behalf of their clients, without the consent of the town attorney?
Yes, Attorneys A and B may communicate in writing with the members of the town council for the purpose of petitioning to have a matter placed on the agenda for the next public meeting of the town council. A copy of the written communication should be provided to the town attorney.
Rule 7.4(a) of the Rules of Professional Conduct prohibits communications about the subject of representation with a party the lawyer knows to be represented by another lawyer in the matter unless the other lawyer consents or unless the lawyer is authorized by law to communicate with the party. The First Amendment of the United States Constitution, however, prohibits the enactment of laws that abridge the right of the people "to petition the government for a redress of grievance." The Comment to Rule 7.4 recognizes this constitutional right where it notes that "[c]ommunications authorized by law include...the right of a party to a controversy with a government agency to speak with government officials about the matter."
If the town is represented in a matter by legal counsel, the appropriate forum in which a lawyer should address the elected officials of the town on behalf of a client is a public meeting of the town council. A written request to be heard, including a discussion of the merits of the client's position and why it should be heard by the town council may, therefore, be sent directly to the members of the town council without interference from the legal counsel for the town. The decision as to whether a particular item will be placed on the agenda for a public meeting of the town council must be made, however, by the elected officials, presumably with the advice of their attorney.
This opinion does not restrict a client's right to communicate directly with his or her elected representatives without the consent of the lawyer for the town.
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