Formal Advisory Opinion No. 98-3
Ethics & Discipline / Advisory Opinions / Formal Advisory Opinions / Formal Advisory Opinion No. 98-3
State Bar of Georgia
Issued by the Supreme Court of Georgia
On June 1, 1998
Formal Advisory Opinion No. 98-3
For reference to Standard of Conduct 47, please see Rule 4.2(b)(1).
For reference to Standard of Conduct 48, please see Rule 1.7(a).
For reference to DR 7-103, please see Rule 3.8(a).
For an explanation regarding the addition of headnotes to the opinion, click here.
May a staff lawyer for a non-profit legal services group contact State officials to express concerns about the legality of treatment of non-clients?
A staff lawyer for a non-profit legal services group may contact State officials to express concerns about the legality of treatment of non-clients and clients alike because such communication is authorized by law and because the State is not an adverse party in that situation.
I. Factual Scenario:
A staff lawyer for a non-profit legal services group (hereinafter "lawyer") receives information that a state prison inmate is denied a constitutionally protected right by the housing institution. The lawyer contacts the Warden of the institution in writing, notifying the Warden of the situation from the perspective of the inmate. In addition, the writing cites legal authority and argues that the institution has denied the inmate's constitutionally protected rights. In conclusion, the letter asks the Warden to conform to the inmate's demands in light of the legal authority cited in the letter.
The lawyer knows that the Warden is a state official with managerial responsibilities. The lawyer also knows that the State is represented by the Attorney General of the State. The lawyer does not seek approval from the Attorney General's office prior to his correspondence.
II. Ethical and Legal Considerations
The factual scenario raises questions about the application of Standard 47.1 More particularly, the questions at issue are whether the government is a "party" as contemplated by Standard 47 and whether the communication described falls within the "authorized by law" exception to Standard 47.
During the course of his representation of a client, a lawyer shall not 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 written consent of the lawyer representing such other party or is authorized by law to do so. A violation of this standard may be punished by a public reprimand.
The factual scenario describes a lawyer's communication with a government agency he knows to be represented by a lawyer, without the prior written consent of the lawyer representing the government agency. While the question presented refers to a "non-client," the factual scenario describes a situation where the lawyer is offering legal assistance on behalf of a person who presumably requested the assistance. See Huddleston v. State, 259 Ga. 45 (1989) and Legacy Homes v. Cole, 205 Ga. App. 34 (1992) for a description of the formation of the attorney-client relationship. Thus, the communication is the subject of the lawyer's representation of a client.
Because the government is not an adverse party in this situation and because the communication described is authorized by law, Standard 47 does not apply to the factual scenario presented. The communication prohibited by Standard 47 protects an adverse party from overreaching by opposing counsel, protects the attorney-client relationship, and reduces the likelihood that clients will disclose privileged information that could harm their interests. See, ABA Formal Advisory Opinion 95-396 for a description of the history and purpose of similar rules prohibiting such communication.
Standard 47 contemplates a situation where a party might take advantage of another with an adverse interest, through unauthorized communication. However, the factual scenario described above is not such a situation. The purpose of the government is to protect its people, including those it has taken into custody. This fundamental concept is well represented in our laws, including our Bar Rules.
The petition clause of the First Amendment is directly on point in this regard: Congress shall make no law...abridging...the right of the people...to petition the Government for a redress of grievances. The government has a duty to make itself available to those who have legitimate grievances.
The government has a duty to make itself available to those who have legitimate grievances. If a person, even a lawyer representing a person incarcerated by the State, has reason to believe that the State is acting in an oppressive manner, that person has a right to communicate this grievance directly to the government agency involved. To do so is a Constitutionally protected right and thus falls within the "authorized by law" exception to Standard 47.
Even where State officials initiate a clearly adversarial proceeding, lawyers for the State are obligated to protect the interests of the accused. This concept is reflected in Directory Rule DR 7-103:
(A) A public prosecutor or other government lawyer shall not institute or cause to be instituted criminal charges when he knows or it is obvious that the charges are not supported by probable cause.
While the First Amendment and DR 7-103 contemplate different situations, they both incorporate the notion that the government has an interest in protecting its citizens that is a paramount to any interests it has in being protected from them. In the factual scenario provided, the government agency has an interest in addressing the concerns raised by the lawyer. While the government may have competing interests, that alone does not make the government an adverse party.
In summary, a staff lawyer for a non-profit legal services group may contact State officials to express concerns about the legality of treatment of clients because such communication is authorized by law and because the State is not an adverse party in that situation. Regardless of the adversarial nature of the situation, a lawyer should always strive to maintain the integrity of the profession (Canon 1) while representing the best interest of his client, and should consider providing copies of the communication to the State lawyer.
1This opinion does not address Standard 48 which prohibits a lawyers advice to a person who is not represented by a lawyer where the interests of the person are or have a reasonable possibility of being in conflict with the interests of his client. In the factual scenario described in this opinion, the lawyer knows that the state institution is represented by the Attorney General for the State.
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