Legal Ethics Opinion 1504

Communication With Adverse Party: Attorney's Paralegal Contacting
Opposing Party For Information Available Under the Freedom of
Information Act

You have indicated that private parties, represented by a private
law firm, are involved in either litigation or an administrative
proceeding with a state agency which is represented by the
Attorney General.  A paralegal for the private law firm, at the
direction of an attorney, contacts an employee of the state
agency to determine if certain information exists, which
information is relevant to the proceeding.  The paralegal then
follows up the conversation with a written request under the
Virginia Freedom of Information Act [Act].  The agency employee
in question, acting within his authority, responds to the
request, providing the information.  Neither the agency head nor
the Office of the Attorney General is made aware of either the
request or the response.

You have asked the committee to opine whether, under the facts of
the inquiry, the conduct in question is in any way inconsistent
with the ethical obligations set out in the Code of Professional

The appropriate and controlling disciplinary rule relative to
your inquiry is DR 7-l03(A)(l) which mandates that

     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 consent of the lawyer representing such other
     party or is authorized by law to do so.  [emphasis added]

The committee has previously opined that it is not improper for
an attorney or his paralegal to contact a potential adverse party
for the purpose of securing pamphlets, other literature or
product information that is available to the public.  The
committee opined that information that is available to the public
is not considered confidential and would not be protected by the
attorney-client relationship, nor would an attorney or paralegal
be ethically prohibited from obtaining the same for the purpose
of conducting the investigation of a claim preliminary to filing
an action.  LEO #ll90.  Cf.  LEOs #482, l28l.  

Furthermore, the committee has consistently opined that it is not
impermissible for an attorney to directly contact and communicate
with employees of an adverse party provided that the employees
are not members of the corporation's "control group" and are not
able to commit the organization or corporation to specific
courses of action that would lead one to believe the employee is
the corporation's alter ego.  See, e.g., LEOs #347, 530, 795,
905; Upjohn Co. v. U.S., 449 U.S. 383, l0l S.Ct. 677, 66 L.Ed.2d
584 (l98l).  

With respect to actions involving governmental agencies, the
committee has previously opined that the disciplinary rule
proscribing communications with adverse parties is not applicable
in a case where persons are petitioning a legislative body [LEO
#529]; and that, where an attorney is involved in litigation
against a county board of supervisors, it would not be improper
for the attorney to contact other county employees if they are
fact witnesses not charged with Cf. LEO #964(2)(plaintiff's
counsel in an action against the Division of Child Support
Enforcement shall not communicate or cause another to communicate
on the subject of the representation with the party in that
matter unless he has the prior consent of the lawyer representing
such other party or is authorized by law to do so)

The committee is of the opinion that the role of the governmental
agency in accommodating the need of the public at large or the
opposing party in particular for information in the possession of
the agency has been addressed by the Act.  The committee believes
that it is thus not improper for opposing counsel or his
paralegal to avail themselves of information available under that
Act.  In the committee's view, the status of litigant or
litigant's counsel does not disenfranchise one from obtaining
information otherwise available to the public.  See Frey v.
Department of Health and Human Services, l06 F.R.D. 32 (E.D.N.Y.
l985) Thus, in the facts you present, the committee believes that
where contact with a governmental agency is authorized through
statutory provisions, such as the Freedom of Information Act,
communication carried out by an employee of an attorney opposing
the agency in litigation is neither improper nor violative of DR

Committee Opinion
December 14, 1992