Editor's Note:
State Bar Ethics Opinions cite the applicable California Rules of Professional Conduct in effect at the time of the writing of the opinion. Please refer to the California Rules of Professional Conduct Cross Reference Chart for a table indicating the corresponding current operative rule. There, you can also link to the text of the current rule.
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May an attorney discuss a subject of litigation against a city with a public official without consent of the city attorney?
It is proper for an attorney to discuss a subject of litigation against the city with the city council at a public meeting, with a member of the city council privately, or with the city manager privately, without first obtaining the consent of the city attorney.
Rule 7-103 of the Rules of Professional Conduct of the State Bar.
The Committee has been asked for an interpretation of rule 7-103 of the Rules of Professional Conduct as it applies to three hypothetical situations. Rule 7-103 of the Rules of Professional Conduct provides:
"A member of the State Bar shall not communicate directly or indirectly with a party whom he knows to be represented by counsel upon a subject of controversy, without the express consent of such counsel. This rule shall not apply to communications with a public officer, board, committee or body."
The hypothetical situations presented are:
1. An attorney representing a party bringing an action against a city attends a meeting of the city council at which members of the council and the city administrative staff are present, but at which the legal counsel for that body is not. The attorney for the party asks to speak to the council and does so on the subject matter of the legal dispute between his client and the city.
2. The same attorney approaches a member of the city council privately and speaks to that council member without first requesting and receiving permission from the city attorney.
3. The same attorney approaches the city manager or other member of the administrative staff and privately discusses the subject matter of the action between the city and his client without permission from the city attorney.
In each hypothetical situation presented, the attorney addresses an individual or body excepted from coverage of rule 7-103 of the Rules of Professional Conduct.
Clearly, a city council is a public body and a member of that council or a city manager are public officers within the meaning of rule 7-103 of the Rules of Professional Conduct. Public officers are vested with authority to exercise some sovereign power. To the extent they have that authority, they remain public officers off the job. For that reason, it makes no difference whether the attorney approaches the official publicly or privately. The subject of conversation (here, apparently, an attempt to influence the response to an action against the city) determines the capacity in which the individual acts. In either case, the restraints of rule 7-103 of the Rules of Professional Conduct do not apply.
There is authority which would distinguish the public official from a government employee, such as a member of the city manager's staff. (See, e.g., Cleland v. Superior Court (1942) 52 Cal.App.2d 530.) For the purposes of this opinion, it is unnecessary to resolve that issue. If the staff members are public officials, the attorney is free to contact them because rule 7-103 of the Rules of Professional Conduct does not apply. If they are not public officials, contact would still be authorized as they are not parties to the action. (See ABA Committee on Prof. Ethics, opn. No. 117 (1934) and Wise, Legal Ethics (1970) p. 292.)
Accordingly, an attorney representing a client who is suing the city may communicate with any public official or the city council about a subject of the litigation without the consent of the city attorney. He should, when appearing before the city council, identify himself and, if not privileged, identify his client. (See ABA Code of Prof. Responsibility, EC 7-16.)
This opinion is issued by the Standing Committee on Professional Responsibility and Conduct of The State Bar of California. It is advisory only. It is not binding upon the courts, The State Bar of California, its Board of Governors, any persons or tribunals charged with regulatory responsibilities, or any member of the State Bar.1
[PUBLISHER'S NOTE: In July 1979, the Board of Governors declined to amend the rule.]
1 Note: As of April 30, 1977, the subject matter of the exception to rule 7-103 of the Rules of Professional Conduct, concerning public officers, boards, committees or bodies was currently under study by a Committee of the Board of Governors of the State Bar of California.
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