INVESTIGATIVE CONDUCT Including Ethics Opinion #600 · Mr. Barton concentrates on regulatory,...

INVESTIGATIVE CONDUCT Including Ethics Opinion #600

HUGH M. BARTON, III, Austin Attorney at Law

State Bar of Texas 23RD ANNUAL ADVANCED ADMINISTRATIVE LAW COURSE

June 30 – July 1, 2011 Austin

CHAPTER 15

Hugh M. Barton A Professional Corporation

Attorney at Law819½ West 11 Streetth

Austin, TX [email protected]

(512 499-0793)

Hugh M. Barton is an attorney in private practice in Austin, Texas. He received hisundergraduate degree from the Cox School of Business at Southern Methodist Universityand his law degree from the University of Tulsa College of Law.

Mr. Barton has practiced law for 31 years, and health law for 27 years. He previouslyserved as Assistant District Attorney in Trinity, Polk and San Jacinto Counties, as anAssistant Attorney General with the Texas Attorney General’s Medicaid Fraud Control Unit,and as Assistant General Counsel at the Texas Medical Association.

Mr. Barton concentrates on regulatory, administrative and transactional health carematters, advising health care providers on operational issues, Medicare, Medicaid andprivate payor reimbursement matters, resolution of issues with regulatory agencies, suchas licensing and disciplinary matters, as well as assisting criminal counsel in defense ofhealth fraud cases.

Mr. Barton is Board Certified in Health Law by the Texas Board of Legal Specialization andis a Past Chair of the State Bar of Texas Health Law Section. He is a frequent speaker andhas published 139 articles on health law.

mailto:[email protected]

Investigative Conduct Chapter 15

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TABLE OF CONTENTS

I. INTRODUCTION ................................................................................................................................................... 1 II. THE TEXAS DISCIPLINARY RULES OF PROFESSIONAL CONDUCT IN GENERAL ............................... 1 A. APPLICABILITY. .......................................................................................................................................... 1 B. BASIC RULES ................................................................................................................................................ 1 III. ETHICAL STANDARDS APPLICABLE TO GOVERNMENT LAWYERS IN GENERAL ............................. 2 A. In General. ....................................................................................................................................................... 2 B. Section 13 of the TDPRC Preamble: ............................................................................................................... 2 C. TDPRC 1.05/Confidentiality Of Information: ................................................................................................ 2 D. TDPRC 1.12/the Organization as a Client: .................................................................................................... 2 E. TDPRC 2.10/Role of Attorney as Advisor to Client ....................................................................................... 4 F. TDPRC 4.02/Communication with One Represented by Counsel .................................................................. 4 G. TDPRC 5.03/Responsibilities Regarding Nonlawyer Assistants .................................................................... 4 IV. ETHICAL STANDARDS APPLICABLE TO PROSECUTORS .......................................................................... 4 A. In General. ....................................................................................................................................................... 4 B. TDPRC 3.09/special Responsibilities of Prosecutors ...................................................................................... 4 C. Problem Areas. ................................................................................................................................................ 5 D. Connick v. Thompson. ..................................................................................................................................... 5 V. ADMINISTRATIVE AGENCY INVESTIGATIONS ..................................................................................... 6 A. Introduction ..................................................................................................................................................... 6 B. Initial Evaluation. ............................................................................................................................................ 6 C. Gathering and Evaluating Data. ...................................................................................................................... 6 D. Field Work. ...................................................................................................................................................... 7 E. Report Preparation. .......................................................................................................................................... 7 F. Internal Review. .............................................................................................................................................. 7 G. Where Is the Agency Attorney During the Investigation? .............................................................................. 7 VI. TEXAS ETHICS OPINION NO. 499…………………………………. ................................................................ 8 A. Introduction. .................................................................................................................................................... 8 B. Facts................................................................................................................................................................. 8 C. Questions. ......................................................................................................................................................... 8 D. Conclusions. .................................................................................................................................................... 9 VII. TEXAS ETHICS OPINION NO. 600 ..................................................................................................................... 9 A. Introduction. .................................................................................................................................................... 9 B. Facts................................................................................................................................................................. 9 C. Question........................................................................................................................................................... 9 D. Discussion. ...................................................................................................................................................... 9 E. Conclusion. .................................................................................................................................................... 10 VIII. SCENARIOS IMPLICATING OPINION NO. 600 ............................................................................................. 10 A. Hypothetical. ................................................................................................................................................. 10 B. Questions. ...................................................................................................................................................... 10 Appendix ....................................................................................................................................................................... 13


INVESTIGATIVE CONDUCT Including Ethics Opinion #600

I. INTRODUCTION The purpose of this paper is to provide lawyers,

both those working for governmental entities and thosein private practice, with a perspective on ethical conductin the course of the investigative process by agovernment lawyer. This issue is both curious in light ofthe issuance of Opinion 600 by the Professional EthicsCommittee in August 2010, and important in light ofrecent press revelations of widespread prosecutorialmisconduct and the Supreme Court’s recent opinion inConnick v. Thompson.

II. THE TEXAS DISCIPLINARYRULES OF PROFESSIONALCONDUCT IN GENERAL

A. APPLICABILITY. The Texas Disciplinary Rules of Professional

Conduct (“TDRPC”) were adopted by the Texas SupremeCourt in 1990. All lawyers admitted to practice in Texasare subject to the disciplinary jurisdiction of the SupremeCourt (Tex. Gov’t Code §81.071), hence, all must abideby the TDPRC as minimum standards of practice.

B. BASIC RULES. A complete discussion of the TDPRC is beyond

the scope of this paper, but the ethical duties of lawyersare organized around the functional aspects of anlawyer’s job. A brief summary is as follows:

1. The Attorney-Client Relationship:

• providing competent and diligentrepresentation;

• maintain the confidentiality of information;• avoid conflicts of interest; and• not obstruct justice.

2. The Advisor Role:

• exercise independent professionaljudgment and rendering candid advice; and

• not evaluating a client matter for the use ofsomeone other than the client unlesscompatible with other aspects of therepresentation and with client consent.

3. The Advocate Role:

• avoiding initiation of proceedings unlessthere is a non-frivolous basis for doing so;

• minimize burdens of litigation;

• maintain candor towards a tribunal; • fairness in conduct of proceedings;• maintain the impartiality of tribunals; and• not making extrajudicial statements

during trial that may prejudice outcome.

4. Dealings with Non-Clients:

• not make a false statement of fact or law tothird persons;

• not circumvent the lawyer-clientrelationship existing between other persons;

• not state or imply that the lawyer isdisinterested when dealing on behalf of aclient with a person who is not representedby counsel; and

• not use means that have no substantialpurpose other than to embarrass, delay, orburden a third person, or use methods ofobtaining evidence that violate the rights ofa person.

5. When In Law Firms:

• not share legal fees with a non-lawyer;• not assist a non-lawyer to perform an of

activity that is the unauthorized practice oflaw;

• use no agreement that restricts the rights ofa lawyer to practice after termination of therelationship; and

• not manifest bias or prejudice based onrace, color, national origin, religion,disability, age, sex, or sexual orientationtowards a person involved in a proceeding.

6. Rendering Public Interest Legal Service:

• provide free legal services to those unableto pay reasonable fees; and

• not seek to avoid appointment by a tribunalto represent a person except for good cause.

7. Maintain the Integrity of the Profession:

• make no false statement of material fact inconnection with bar admission or adisciplinary matter;

• inform a disciplinary authority that anotherlawyer has violated the rules of professionalconduct when it raises a substantialquestion as to that lawyer’s honesty,trustworthiness or fitness as a lawyer inother respects;

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• not engage in conduct involving dishonesty,fraud, deceit or misrepresentation; and

• not violate the rules of professional conductthrough the acts of another.

III. ETHICAL STANDARDS APPLICABLETO GOVERNMENT LAWYERS INGENERAL

A. In General. The drafters of the TDPRC appreciated the

position that government lawyers are in by delineatingways in which having a government agency for a clientdiffer from having an individual or other entity as aclient.

B. Section 13 of the TDPRC Preamble:

13. The responsibilities of government lawyers,under various legal provisions, includingconstitutional, statutory and common law, mayinclude authority concerning legal matters thatordinarily reposes in the client in privateclient-lawyer relationships. For example, alawyer for a government agency may haveauthority on behalf of the government to decideupon settlement or whether to appeal from anadverse judgment. Such authority in variousrespects is generally vested in the attorneygeneral and the states attorney in stategovernment, and their federal counterparts, andthe same may be true of other government lawofficers. Also, lawyers under the supervision ofthese officers may be authorized to represents e ve r a l go ve r nmen t agenc i e s i nintragovernmental legal controversies incircumstances where a private lawyer could notrepresent multiple private clients. They alsomay have authority to represent the publicinterest in circumstances where a privatelawyer would not be authorized to do so. Theserules do not abrogate any such authority.

Comment: Section 13, like the rest of the TDPRCPreamble, is descriptive in nature only and provides nosubstantive guidance, other than to make it clear that, incertain situations, a government attorney may makedecisions in legal matters that would otherwise be madeby a client (individual or entity) in the context of anattorney in private practice.

C. TDPRC 1.05/confidentiality of Information:The general rule is that an attorney shall not reveal

confidential information of a client or former client to aperson that the client has instructed not ro receive the

information, or anyone else other than the client ormembers of the same law firm.

Official Comment: The official TDPRC comment to thisrule states that “The requirement of confidentialityapplies to government lawyers who may disagree withthe policy goals that their representation is designed toadvance.”

Comment: This is obviously designed to prevent adisgruntled government attorney from quitting their joband using certain information against the governmentagency. This might work to prohibit release ofinformation about a particular case or cases, butknowledge about how an agency operates in general orhow it approaches certain types of cases (for example,suppose an agency has an unofficial policy of bringingenforcement actions against a racial minority based onthe biases of appointed officials) may well have largerpublic policy and First Amendment implications, not tomention Open Records and Open Meetings lawimplications.

D. TDPRC 1.12/the Organization as a Client:

(a) A lawyer employed or retained by anorganization represents the entity. While thelawyer in the ordinary course of workingrelationships may report to, and acceptdirection from, an entity's duly authorizedconstituents, in the situations described inparagraph (b) the lawyer shall proceed asreasonably necessary in the best interest ofthe organization without involvingunreasonable risks of disrupting theorganization and of revealing informationrelating to the representation to personsoutside the organization.

(b) A lawyer representing an organization musttake reasonable remedial actions wheneverthe lawyer learns or knows that:

(1) an officer, employee, or other personassociated with the organization hascommitted or intends to commit aviolation of a legal obligation to theorganization or a violation of law whichreasonably might be imputed to theorganization;

(2) the violation is likely to result insubstantial injury to the organization;and

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(3) the violation is related to a matter withinthe scope of the lawyers representationof the organization.

(c) Except where prior disclosure to personsoutside the organization is required by law orother Rules, a lawyer shall first attempt toresolve a violation by taking measures withinthe organization. In determining the internalprocedures, actions or measures that arereasonably necessary in order to comply withparagraphs (a) and (b), a lawyer shall give dueconsideration to the seriousness of theviolation and its consequences, the scope andnature of the lawyers representation, theresponsibility in the organization and theapparent motivation of the person involved,the policies of the organization concerningsuch matters, and any other relevantconsiderations. Such procedures, actions andmeasures may include, but are not limited to,the following:

(1) asking reconsideration of the matter;(2) advising that a separate legal opinion on

the matter be sought for presentation toappropriate authority in the organization;and

(3) referring the matter to higher authority inthe organization, including, if warrantedby the seriousness of the matter, referralto the highest authority that can act inbehalf of the organization as determinedby applicable law.

(d) Upon a lawyers resignation or termination ofthe relationship in compliance with Rule 1.15,a lawyer is excused from further proceedingas required by paragraphs (a), (b) and (c), andany further obligations of the lawyer aredetermined by Rule 1.05.

(e) In dealing with an organizations directors,officers, employees, members, shareholdersor other constituents, a lawyer shall explainthe identity of the client when it is apparentthat the organization's interests are adverse tothose of the constituents with whom thelawyer is dealing or when explanation appearsr e a s o n a b l y n e c e s s a r y t o a vo i dmisunderstanding on their part.

Official Comment: The official TDPRC comment to thisrule states: “The duty defined in this Rule applies togovernmental organizations. However, when the client is

a governmental organization, a different balance may beappropriate between maintaining confidentiality andassuring that the wrongful official act is prevented orrectified, for public business is involved. In addition,duties of lawyers employed by the government orlawyers in military service may be defined by statutesand regulations. Therefore, defining precisely theidentity of the client and prescribing the resultingobligations of such lawyers may be more difficult in thegovernment context. Although in some circumstances theclient may be a specific agency, it is generally thegovernment as a whole. For example, if the action orfailure to act involves the head of a bureau, either thedepartment of which the bureau is a part or thegovernment as a whole may be the client for purpose ofthis Rule. Moreover, in a matter involving the conduct ofgovernment officials, a government lawyer may haveauthority to question such conduct more extensively thanthat of a lawyer for a private organization in similarcircumstances. This Rule does not limit that authority.”

The official comment to the TDPRC is virtually similar to the comments that appear in the ABA ModelRules of Professional Conduct, Rule 1.13.

Comment: The phrase “Although in some circumstancesthe client may be a specific agency, it is generally thegovernment as a whole” is probably too restrictive of aview. As has been pointed out, “In one sense, the public-at-large is the client and not necessarily the elected orappointed officials or administrative personnel.”Conflicts and Government Lawyers, Dewey Helmcamp,Advanced Administrative Law Course 2004.

A person who works for an agency does notnecessarily represent that agency. In Tex. Dept. ofMental Health and Mental Retardation v. Davis, 775S.W.2d 467 (Tex.App. —Austin 1989), MHMR tried toblock release of an investigative report to the parents ofa child who drowned at a state school. The investigativereport was ordered by the agency’s director of legalservices and was conducted by non-lawyers. The irectorof legal services admitted that this investigation wasseparate from and outside the investigations and reportsconducted under agency rule. During litigation, MHMRclaimed the attorney-client and work product privileges.

The court concluded that those involved inpreparing the report and communicating it to the directorof legal services were not shown to be “clientrepresentatives,”entitled to be privy to confidentialcommunication, with authority on behalf of the agencyto obtain professional legal services or to act on anylegal advice the attorney might render because it couldnot determine in what capacity the agency’s employees

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(who acted as investigators) acted and upon whose orderthey acted.

Thus, without explicitly saying so the court found that in this case “a different balance” was “appropriatebetween maintaining confidentiality and assuring that thewrongful official act is prevented or rectified” - in thiscase the balance tilted toward rectification.

E. TDPRC 2.10/Role of Attorney as Advisor toClientIn advising or otherwise representing a client, a

lawyer shall exercise independent professional judgmentand render candid advice.

F. TDPRC 4.02/Communication with OneRepresented by CounselIn representing a client, a lawyer shall not

communicate or cause or encourage another tocommunicate about the subject of the representation witha person, organization or entity of government the lawyerknows to be represented by another lawyer regarding thatsubject, unless the lawyer has the consent of the otherlawyer or is authorized by law to do so.

G. TDPRC 5.03/Responsibilities RegardingNonlawyer AssistantsA lawyer having supervisory authority over a

nonlawyer shall make reasonable efforts to ensure thatthe person’s conduct is compatible with the lawyer’sprofessional obligations and the lawyer is subject todiscipline for the conduct of such a person that would bea violation of the rules if engaged in by a lawyer, if thelawyer orders, encourages, or permits the conductinvolved.

IV. ETHICAL STANDARDS APPLICABLE TOPROSECUTORS

A. In General. The majority of government lawyers consider

themselves to be practicing administrative law and do notget involved in criminal matters, but a great many of thestatutes governing substantive matters include criminalprovisions. For example it is a crime to:

• join or solicit another person to join a publicschool fraternity or sorority. Tex. Educ. Code§37.121;

• uses an assistance animal with a leashcommonly used by disabled persons to represent that their animal is a speciallytrained assistance animal when such training has not beenprovided. Tex. Hum. Res. Code §121.006.

• fail to pay interest when refunding a utility

deposit. Tex. Util. Code §183.006.• burn or bury animal remains within the

corporate boundaries of a municipality (by aveterinarian). Tex. Occ. Code §§801.361 &801.504.

These are minor offenses, of course, but many regulatoryschemes contain criminal penalties for substantialbreaches of health, safety and welfare laws. Hence, anexamination of the ethical duties of criminal prosecutorsis appropriate, especially when contemplating thegovernment lawyer’s role in agency investigations.

B. TDPRC 3.09/special Responsibilities ofProsecutorsThe prosecutor in a criminal case shall:

(a) refrain from prosecuting or threatening toprosecute a charge that the prosecutor knowsis not supported by probable cause;

(b) refrain from conducting or assisting in acustodial interrogation of an accused unlessthe prosecutor has made reasonable efforts tobe assured that the accused has been advisedof any right to, and the procedure forobtaining, counsel and has been givenreasonable opportunity to obtain counsel;

(c) not initiate or encourage efforts to obtainfrom an unrepresented accused a waiver ofimportant pre-trial, trial or post-trial rights;

(d) make timely disclosure to the defense of allevidence or information known to theprosecutor that tends to negate the guilt of theaccused or mitigates the offense, and, inconnection with sentencing, disclose to thedefense and to the tribunal all unprivilegedmitigating information known to theprosecutor, except when the prosecutor isrelieved of this responsibility by a protectiveorder of the tribunal; and

(e) exercise reasonable care to prevent personsemployed or controlled by the prosecutor ina criminal case from making an extrajudicialstatement that the prosecutor would beprohibited from making under Rule 3.07.

Official Comment:

Source and Scope of Obligations

1. A prosecutor has the responsibility to see thatjustice is done, and not simply to be an advocate.This responsibility carries with it a number ofspecific obligations. Among these is to see that no

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person is threatened with or subjected to the rigorsof a criminal prosecution without good cause. Seeparagraph (a). In addition a prosecutor should notinitiate or exploit any violation of a suspects rightto counsel, nor should he initiate or encourageefforts to obtain waivers of important pre-trial,trial, or post-trial rights from unrepresentedpersons. See paragraphs (b) and (c). In addition, aprosecutor is obliged to see that the defendant isaccorded procedural justice, that the defendantsguilt is decided upon the basis of sufficientevidence, and that any sentence imposed is basedon all unprivileged information known to theprosecutor. See paragraph (d). Finally, a prosecutoris obliged by this rule to take reasonable measuresto see that persons employed or controlled by himrefrain from making extrajudicial statements thatare prejudicial to the accused. See paragraph (e)and Rule 3.07. See also Rule 3.03(a)(3), governingex parte proceedings, among which grand juryproceedings are included. Applicable law mayrequire other measures by the prosecutor andknowing disregard of those obligations or asystematic abuse of prosecutorial discretion couldconstitute a violation of Rule 8.04.

2. Paragraph (a) does not apply to situations wherethe prosecutor is using a grand jury to determinewhether any crime has been committed, nor does itprevent a prosecutor from presenting a matter to agrand jury even though he has some doubt as towhat charge, if any, the grand jury may decide isappropriate, as long as he believes that the grandjury could reasonably conclude that some charge isproper. A prosecutors obligations under thatparagraph are satisfied by the return of a true billby a grand jury, unless the prosecutor believes thatmaterial inculpatory information presented to thegrand jury was false.

3. Paragraph (b) does not forbid the lawfulquestioning of any person who has knowingly,intelligently and voluntarily waived the rights tocounsel and to silence, nor does it forbid suchquestioning of any unrepresented person who hasnot stated that he wishes to retain a lawyer andwho is not entitled to appointed counsel. See alsoRule 4.03.

4. Paragraph (c) does not apply to any person whohas knowingly, intelligently and voluntarily waivedthe rights referred to therein in open court, nordoes it apply to any person appearing pro se withthe approval of the tribunal. Finally, that paragraphdoes not forbid a prosecutor from advising anunrepresented accused who has not stated hewishes to retain a lawyer and who is not entitled to

appointed counsel and who has indicated in opencourt that he wishes to plead guilty to chargesagainst him of his pre-trial, trial and post-trialrights, provided that the advice given is accurate;that it is undertaken with the knowledge andapproval of the court; and that such a practice isnot otherwise prohibited by law or applicable rulesof practice or procedure.

5. The exception in paragraph (d) recognizes that aprosecutor may seek an appropriate protectiveorder from the tribunal if disclosure of informationto the defense could result in substantial harm toan individual or to the public interest.

6. Sub-paragraph (e) does not subject a prosecutor todiscipline for failing to take measures to preventinvestigators, law enforcement personnel or otherpersons assisting or associated with the prosecutor,but not in his employ or under his control, frommaking extrajudicial statements that the prosecutorwould be prohibited from making under Rule 3.07.To the extent feasible, however, the prosecutorshould make reasonable efforts to discourage suchpersons from making statements of that kind.

C. Problem Areas. A USA TODAY investigation documented 201

criminal cases in which federal judges found that federal prosecutors broke various ethical, procedural andevidentiary rules and cited them for prosecutorialmisconduct since 1997. Articles which ran fromSeptember 2010 through March 2011 disclosed ninekinds of misconduct:

• improper remarks to the jury• failure to disclose evidence that points to a

defendant's innocence• misrepresentation to the court• improper attempts to influence witnesses• improper release of information to the media• improper impeachment• breaching a plea agreement• failure to comply with court orders and• improper “vouching”

These include a number of cases in Texas. See:projects.usatoday.com/news/2010/justice

D. Connick v. Thompson. The US Supreme Court decided this prosecutorial

misconduct case on March 29, 2011.

(1) Facts. The Orleans Parish District Attorney’soffice prosecuted Thompson for attempted armedrobbery. In doing so they violated Brady v.

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Maryland, 373 U. S. 83, by failing to disclose acrime lab report. Because of the robberyconviction, he elected not to testify at his latermurder trial and was convicted. A month before hisscheduled execution, the lab report was discovered.Both convictions were vacated , and Thompsonwas found not guilty in a retrial on the murdercharge.

(2) Issues. Thompson filed suit against the DA under42 U SC §1983, alleging, inter alia, that the Bradyviolation was caused by the DA’s deliberateindifference to an obvious need to train prosecutorsto avoid such constitutional violations. The districtcourt held that, to prove deliberate indifference,Thompson did not need to show a pattern ofsimilar Brady violations when he coulddemonstrate that the need for training was obvious.The jury found the DA’s office liable for failure totrain and awarded Thompson damages. The FifthCircuit affirmed.

(3) Holding. The Supreme Court held that failure totrain prosecutors in their Brady obligations doesnot fall within the narrow range of single-incidentliability, such as would be the case if a city armedits police force and deployed them into the publicto capture fleeing felons without training theofficers in the constitutional limitation on the useof deadly force, in which case the failure to traincould reflect the city’s deliberate indifference tothe highly predictable consequence, namely,violations of constitutional rights. Thus the needfor specific legal training was absent here.

In other words, it is assumed that the prosecutorsare familiar with the Brady rule, such that themaking of an obviously wrong decision does notamount to “a decision by the city itself to violatethe Constitution” by failing to provide specifictraining.”

(4) Reaction. Comment by the criminal defense barhas been harsh. As an example, Houston criminallawyer John Floyd commented in his blog on4/10/11: “We believe Justice Thomas, and hisconservative brethren, have given rogueprosecutors a virtual free pass to lie and cheat,even when they knowingly send innocent people toprison. These five justices have givenconstitutional blessing to the deplorable, shameful,and ever-increasing taint of prosecutorialmisconduct in our legal system, and that is ajudicial disgrace. The law, and its constitutionalfoundation, can be twisted and manipulated toachieve any objective, too often political ones. And

that is precisely what we believe occurred in theThompson case — a decision by pro-prosecutionjustices designed to cover and insulateprosecutorial misconduct.”

V. A D M I N I S T R A T I V E A G E N C YINVESTIGATIONS

A. Introduction. Texas statutes and agency rules are replete with

detailed policies and methods for the issuance of licensesand permits, and procedures for contested case hearings.Between the issuance of a license or permit and itsrevocation or discipline is a series of events called an“investigation.”

Despite the popularity of detective stories, there isgeneral misunderstanding about the investigativeprocess. Most people, including lawyers and otherprofessionals, tend to view investigations of all sorts asa slightly mysterious process. Investigations are notmysterious, but they are not necessarily easy, either.

What is an “investigation?” Interestingly, Texasagency rules use that term only sparingly, nor do theyspecify what actions by an agency constitute aninvestigation. In this regard, agencies merely follow theexample of law enforcement: Title 1, Chapter 2 of theCode of Criminal Procedure, setting forth the “GeneralDuties of Officers” uses the word “investigate” only fivetimes. Title 5, Chapter 19 of the Penal Code, dealingwith “Criminal Homicide” does not use the word at all,nor does Chapter 20 (Kidnapping), Chapter 22(Assaultive Offenses), Chapter 35 (Insurance Fraud) andChapter 35A (Medicaid Fraud). The HHS Office ofInspector General rules have some of the most numerousreferences to investigative authority, but the actualmethods of investigation are never specified.

In the criminal law context the term "investigation"describes the overall process of determining whethersufficient evidence of a crime exists to warrant formalcriminal charges. In the administrative law context onemerely substitutes a few words: the process ofdetermining whether sufficient evidence of the violationof a statute or rule exists to warrant formal action by theagency to revoke, suspend or discipline a license orpermit (or some other sanction permitted by theapplicable regulatory scheme).

B. Initial Evaluation. The investigating agency must first consider each

complaint or bit of information it receives to determineif an investigation should be pursued. Someone mustask: Who is complaining? Are they credible? Is theallegation coherent? If the allegation is true, has somelaw or rule been violated? If so, is the allegationcapable of being either proven or disproven?

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Most agencies send a notification letter to theaffected licensee at this point, informing them that acomplainant has been received, a short synopsis of thecomplaint, and inviting a response. Some agenciesbifurcate the process, sending a letter about thecomplaint, and a separate letter regarding the initiation ofan investigation.

C. Gathering and Evaluating Data. Once a decision has been made to investigate, the

investigator will order appropriate supportdocumentation. This will vary depending on the agencyinvolved, the nature of the complaint made. For example,in a case involving Medicaid overpayment, copies ofclaims, analyses of billing patterns and documentsshowing any history of problems with the provider willbe obtained. This data will be evaluated to determinewhat sort of individual the licensee or permit holder is,and where a field investigation should concentrate.

D. Field Work. This can take many forms, from interviewing

persons with knowledge of the claimed infraction andgathering additional documentary evidence (by subpoenaor otherwise). One or more visits to the licensee’s placeof business to conduct interviews and obtain additionalevidence may be necessary. If a “confrontationinterview” occurs, it must be carefully scripted to obtainthe maximum amount of information in the shortestamount of time without being too intimidating.

E. Report Preparation. Following the field investigation, the investigator

prepare a report. This may seem to a merely bureaucraticrequirement, but serves several functions. It may be asome time before legal action occurs. Memories ofdetails will become hazy if not immediately recorded. The investigator may leave the employment of theinvestigative agency, and a new investigator may have touse the report. The report may be seen by a defenseattorney if a case is filed, so it should be correct.

F. Internal Review. Before an administrative sanction is imposed the

report should undergo a review process. A supervisorshould determine that all investigative steps have beenfollowed, that the report itself makes sense, and that anyneed for further investigation is addressed before thereport is finalized. Afterwards the report should bereviewed by an agency attorney. If a sanction isrecommended, the attorney should scrutinize the reportfor legal sufficiency. This should not only protect theagency from charges of sloppy workmanship, but ensurethat innocent licensees are not sanctioned due to

erroneous interpretations of the law and/or insufficientevidence.

G. Where Is the Agency Attorney During theInvestigation?

(1) Initial Evaluation. Legal expertise may, or maynot, be needed to determine that some law or rulehas been violated if the allegation is true. On theother hand, an agency cannot assume that itsinvestigators are experts on the law itself, andthere are unfortunately some investigators (likepolice officers) who assume that anyone whocomes to their attention must be guilty ofsomething because they only investigate guiltypersons. And there are investigators who havetheir own agendas, consistently pursing certaintypes of cases - with or without success - based ontheir own inclinations.

Another area in which agency counsel can be ofvalue is determining jurisdictional issues.Agencies that issue licenses and permits have aninterest in policing such licensees, but also servea public function by prohibiting unlicensedpersons from engage in conduct requiring alicense. But this is not always as simple as itappears, and agency counsel can assist indetermining whether the agency can assertjurisdiction over an unlicensed person, and in whatway it might do so.

In addition, if an agency has made a policydecision to regulate an existing area in a new way,or to extend its regulatory reach through new legalarguments, agency counsel should be prepared tobe involved in investigations of this nature sinceresistance from the regulated community is likely.

Agency counsel may also be called on to reviewthe licensee’s response when notified of thecomplaint/investigation to determine if furtheraction is warranted.

Having agency counsel pass on all such mattersmay be tedious, but services a quality controlfunction, since an agency does not want to becomeidentified as conducting pointless inquiries.

(2) Gathering and Evaluating Data. If an investigatorconsistently gathers data that does not produceinvestigative leads, or proves worthless asevidence, agency counsel should be available tocorrect such tendencies before they happen. The

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agency cannot assume that its investigators areexperts in evidentiary law, and such laws changeperiodically, forcing agencies to either adjust orlost cases.

(3) Field Work. Agency counsel generally do notaccompany investigators during fieldinvestigations, but should be available to answerquestions - and solve problems - from the field asthey inevitably arise. Witnesses and licensees mayrefuse to be interviewed without having counselpresent, and having agency counsel involved canbe beneficial here. Investigators may discoverentirely new avenues of inquiry while in the field,and the advice of counsel may be beneficial to help the investigator refocus their efforts.

(4) Report Preparation. While this is usually theprovince of the investigator, maintaining an openflow of information during this phase can not onlyhelp the investigator write a report in such a way asto insure that action will be taken, but also keepagency counsel appraised of the workload.

(5) Internal Review. In every case in which theinitiation of an administrative sanction isrecommended by an investigator, agency counselshould review the report to determine: (i) did thecomplaint allege some legal violation?, (ii) doesthe agency have jurisdiction over the issue orperson?, (iii) was the violation capable of beingproved?, (iv) did the investigator find evidence ofa violation?, (v) is the evidence admissible?, (vi)does the licensee have an adequate explanation forthe claimed violation that would exonerate him?,(vii) did the investigator discover something elsethat is as, or more, meritorious than the initialcomplaint, and has it been proven?, (viii) was theinvestigation conducted in accordance with agencypolicies?, (ix) what other work, if any, needs to beperformed before a sanction is initiated?, (x) didthe investigator identify the correct statutes and/orrules that he claims were violated?, and (xi) did theinvestigation produce evidence of a law violationthat might be better resolved by another agency?

Comment: In this regard, agencies might consider thesame philosophical issue that prosecutors face: what isthe correct standard for taking a case? Some metropolitanprosecutors take every complaint to Grand Jury andobtain an indictment, then let the trial courts determinewhich cases are meritorious by conducting many trials. Inother words, any case that seems to have probable causewill get indicted and go to trial.

On the other hand, prosecutors in somejurisdictions only recommend indictment if there is a

strong likelihood that a case will produce a conviction.This is known as the “trial standard” for indictment.Often the determining factors are political: how muchmoney does the jurisdiction want to spend on prosecutorsalaries and expensive jury trials. Administrative agencies, like local governments, varywidely in their level of funding and hence willingness to“pick fights.”

VI. TEXAS ETHICS OPINION NO. 499 A. Introduction.

The Professional Ethics Committee of the SupremeCourt of Texas has published few opinions specificallydevoted to activities of government lawyers. Opinion499 addresses the responsibilities of government lawyersin a contested case hearing.

B. Facts. During a proceeding, the respondent's attorney

argues that it proceeding was not commenced inaccordance with law and requests the agency’s attorneyto provide a delegation of authority that shows that theproceeding was commenced by a representative withauthority to do so. The agency refuses to do so but asupervising attorney directs the in-house attorney torepresent to the respondent and ALJ that jurisdictionexists. Based on this the ALJ denies the motion todismiss for want of jurisdiction and later issues adecision favorable to the agency.

No delegation of authority had been issued and thesupervising attorney knew it. Respondent's attorney laterlearns that a delegation of authority did not exist. Anemployee of the agency then issues a delegation ofauthority, retroactively effective for the preceding 5½years.

C. Questions.

(1) Does an in-house attorney violate a DisciplinaryRule by representing to an opposing attorney andan ALJ that a factual basis for jurisdiction existswhen he knows it does not?

(2) Does a supervising attorney violate a DisciplinaryRule if he directs a subordinate attorney torepresent to an opposing attorney and ALJ that afactual basis for jurisdiction exists when he knowsit does not?

(3) Does an in-house attorney violate a DisciplinaryRule by representing to an opposing attorney andan ALJ judge that a factual basis for jurisdictionexists unless he has a reasonable belief thatjurisdiction does exist?

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D. Conclusions.

(1) Disciplinary Rules 3.01, 3.03 & 4.01 are violatedif the in-house attorney knew no factual basis forjurisdiction existed at the time he represented thatit did o the opposing attorney and ALJ thatjurisdiction existed.

(2) DR 3.01 would be violated if the in-house attorneydid not have a reasonable basis for believing thatjurisdiction existed when he represented that it did.

(3) Rule 5.01 would be violated if the supervisingattorney ordered, encouraged, or knowinglypermitted the in-house attorney to make falsestatements to the opposing attorney or ALJ or if hefailed to take reasonable remedial action to avoidor mitigate the consequences of the in-houselawyer's violation.

(4) Rule 1.02 would be violated if the in-house lawyerfailed to take reasonable efforts to persuade hisclient (the government agency) to take correctiveaction if he reasonably believed at the time hemade them that his statements to the opposingattorney and ALJ were true but later learned thatthey were not true.

Comment: This result should not be surprising to anyone,as it is a case of (a) the agency acting without clearjurisdiction, (b) the supervising attorney directing hisstaff attorney to lie about it, (c) the staff attorney lying toopposing counsel and the ALJ, and (d) the staff attorneyfailing to take corrective action once he knew that a liewas communicated.

While interesting, Opinion 499 concerns theactions and inactions of agency lawyers at a stage of aproceeding which has become docketed as a contestedcase hearing before an ALJ. What are the ethicalresponsibilities of agency lawyers at a purelyinvestigative stage?

VII. TEXAS ETHICS OPINION NO. 600A. Introduction.

The Professional Ethics Committee of the SupremeCourt of Texas has published one opinion -Opinion 600-addressing the conduct of government lawyers in theinvestigative phase of a case involving a licensee.

B. Facts. A Texas governmental agency that issues licenses

is comprised of a legal and an enforcement division. Thelegal division represents the agency in obtainingenforcement orders but does not have supervisoryauthority or control over the enforcement division. Theenforcement division is staffed by non-lawyers who

investigate complaints. The legal division is not involvedin investigation until cases are referred for disciplinaryaction. After a disciplinary order is entered, the case isreferred back to the enforcement division for monitoring.

In most cases, regulated persons (who investigatedor subject to monitoring for compliance) are representedby legal counsel. Lawyers for regulated persons oftenrequest that the agency’s enforcement division personnel(“investigators”) communicate with regulated persononly through designated counsel.

C. Question. Under the TDRPC, is a governmental attorney

required to ensure that the agency's enforcement officersdo not communicate directly with a regulated personwho is represented by an attorney except with suchlawyer’s consent?

D. Discussion. TDRPC 4.02(a) prohibits an attorney from directly

communicating about legal a matter with a person knownto be represented by counsel unless their attorneyconsents or the communication is “otherwise authorizedby law.” Rule 4.02(a) also prohibits the governmentattorney from “indirectly effecting suchcommunications” by causing a non-lawyer tocommunicate with the represented person.

The Professional Ethics Committee cites Comment2 to Rule 4.02 to the effect that the rule “does notimpose a duty on a lawyer to affirmatively discouragecommunication between the lawyer’s client and otherrepresented persons, organizations or entities ofgovernment.” Thus, since the agency lawyer’s client isthe agency itself, if the lawyer has no supervisoryauthority over investigators and does not “cause orencourage” communications represented persons byinvestigators, the TDPRC imposes no restrictions on thelawyer regarding communications by investigators withrepresented persons.

Furthermore, the TDPRC does not require that anagency lawyer comply with a request from a regulatedperson’s lawyer that all communications by enforcementpersonnel with the regulated person be carried outthrough the [regulated person’s] lawyer.

The Professional Ethics Committee states that a“different analysis would apply if the agency lawyer haddirect supervisory authority over the agencyinvestigators. In that event, Rule 5.03 would make thelawyer responsible for the actions of the employeessupervised by the lawyer. Under Rule 5.03(b), the lawyerwould be in violation of the TDPRC if the lawyerordered, encouraged or permitted employees under thelawyer’s direct supervision to communicate with

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represented persons contrary to the requirements of Rule4.02(a).

E. Conclusion. A governmental attorney is not required to limit

communications by the agency's enforcement officerswho are not subject to the lawyer’s direct supervisoryauthority with regulated persons represented by counsel.But a governmental attorney is not permitted tocommunicate directly with a regulated person representedcounsel who has not consented to the communicationsand is not permitted to cause or encourage suchcommunications by other agency employees. Finally, thegovernmental attorney is obligated to prevent suchcommunications by agency employees over whom theyhave direct supervisory authority.

Comment: Opinion 600 appears to say that, as long as anagency lawyer isolates himself from the activities ofagency investigators, the conduct of investigators incommunicating directly with regulated persons who arerepresented by counsel, and who have indicated to theagency that the investigators should communicatedirectly through counsel, is not imputed to the agencylawyer as a violation of TDPRC 4.02(a).

Does this conclusion flow from the fact which theProfessional Ethics Committee assumes that “[i]n somecases, lawyers for regulated persons have formallyrequested that the agency’s enforcement divisionpersonnel communicate with a regulated person onlythrough the particular regulated person’s lawyer”? Inother words, does the agency lawyer avoid responsibilityif the regulated person’s counsel only communicates their desire to limit communications to retained counsel to theinvestigator and not the agency lawyer?

Or is this conclusion attributable to an unstateddeference on the part of the Professional EthicsCommittee to the effect that a government agency maycommunicate directly with its licensees at all timeregardless of their representation status (Comment 2 toRule 4.02 states “....that paragraph does not impose aduty on a lawyer to affirmatively discouragecommunication between the lawyers client and otherrepresented persons, organizations or entities ofgovernment.). If so, is a mere phrase in a Comment to aTDPRC, -perhaps somewhat out of context - sufficient toreach such conclusion?

VIII. SCENARIOS IMPLICATING OPINION NO.600

A. Hypothetical.The Texas Widget Commission regulates the

manufacture and distribution of widgets. TWC receives

a complaint and initiates an investigation concerning awidget licensee, and informs the licensee of saidinvestigation. The licensee’s counsel responds to thenotice of investigation, denies all allegations, andrequests that all further communication be conductedthrough counsel, and sends a copy to the client/licensee.

When the licensee does not respond, theinvestigator issues an administrative subpoena for theevidence requested in the letter. Believing that hislawyer has been notified, the licensee waits for hislawyer to contact him before responding to the subpoena.The investigator call the licensee and threatens him fornon-response to the subpoena.

The licensee’s lawyer returns from trial to findurgent calls from the licensee regarding the subpoena.He calls the agency’s general counsel regarding thesubpoena and an accommodation is reached on thatmatter. A letter regarding the terms of thataccommodation is sent to the general counsel.

Thereafter, the TWC investigator obtainsinformation that may indicate additional violations of theapplicable law and sends the licensee a second letterstating that the scope of the investigation has beenexpanded, and requests an explanation and relevantdocuments. This letter is not sent to the licensee’sattorney.

Thinking that the expanded investigation isunreasonable, and believing that his lawyer has beennotified, the licensee waits for his lawyer to contact himbefore replying to the investigator. In the meantime, thelicensee’s lawyer is in trial out of state and knowsnothing about the second TWC letter.

Eventually the TWC investigation is concludedwith a tentative finding that the underlying law has beenviolated. TWC and the licensee have an informalconference, and an order is proposed finding a violationand imposing disciplinary action. The order rejected andthe matter is docketed at SOAH. The licensee’s lawyerfiles an answer.

At some time prior to the SOAH hearing, thelicensee’s lawyer schedules a vacation out of thecountry, and sends a notice of unavailability to SOAHand the agency lawyer. On the day the licensee’s lawyerboard the overseas flight, the TWC investigator appearsat the licensee’s place of business with an administrativesubpoena seeking documents that pertain both to thecontested SOAH case and an as yet unspecified matter.

B. Questions.

(1) If the licensee’s lawyer had sent his initial noticeof representation to the agency’s general counsel,would that imputed knowledge of the investigationto an agency lawyer and thus taken the

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IInnvveessttiiggaattiivvee CCoonndduucctt CChhaapptteerr 1155

investigator’s subsequent communications with thelicensee out of the scope of Opinion 600?

(2) Did the licensee, by virtue of retaining a lawyerand asking the lawyer to represent him in front ofTWC, have a right to rely upon his lawyer’s letterof representation to the agency? Or does a person,but virtue of obtaining a license or permit from astate agency, waive such rights?

(3) Does Opinion 600 conflict with Opinion 492? Inthat opinion, a city attorney was allowed toprohibit an attorney representing a municipalemployee in a grievance arising out of municipalemployment from communicating with, or causinganother to communicate with, any city employeewho has "managerial responsibility which relatesto the subject of the representation" based onTDPRC 4.02. In other words, if the city attorney,who is the legal advisor for all city officers anddepartments, can effectively keep a municipalemployee from investigating a grievance throughretained counsel, why cannot the TWC licensee’slawyer prohibit communication with his client aswell?

(4) Does Opinion 600 conflict with Opinion 117? Inthat opinion the question was whether or not itwould violate the Canons of Ethics for attorneysrepresenting a plaintiff, after suit is filed butbefore answer is filed, to obtain a written statement(secured in the presence of a reporter) from thedefendant? It was held that such conduct wouldviolate former Canon 9 if the defendant wererepresented by counsel, and also that it would beunethical to take a statement from the defendantwithout (1) inquiring whether he had retainedcounsel, and (2) giving defendant a reasonableopportunity to employ counsel. (See also Opinion342).

(5) When the TWC investigator issued theadministrative subpoena, did that imputeknowledge of the investigation to an agency lawyeras regards further communications if an agencylawyer either issued the subpoena or was consultedby the investigator about its drafting and/orissuance?

(6) When the licensee’s lawyer contacts the agency’sgeneral counsel regarding the subpoena and theyreach an accommodation reflected in a letter, didthat impute knowledge of the investigation to thegeneral counse l as regards fur thercommunications?

(7) When the licensee’s lawyer filed an answer atSOAH, and sent a Notice of Unavailability toSOAH and the general counsel, did that make theinvestigator’s actions of issuing a subpoena during

the period of unavailability improper? Does theanswer change if the subpoena was issued formatters that are entirely unrelated to the SOAHcase? Does the answer change if the purportedauthority for the subpoena was in the TWC statuteand not in SOAH rules?

Note: the views expressed herein, and

any podium remarks, are the author’s

own and do not represent those of any

court, agency, or the Professional Ethics

Committee of Texas Supreme Court.

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Appendix

THE PROFESSIONAL ETHICS COMMITTEE FOR THE STATE BAR OF TEXAS

Opinion No. 600 - August 2010

QUESTION PRESENTED

Under the Texas Disciplinary Rules of Professional Conduct, is a lawyer for a Texas governmentalagency required to ensure that the agency's enforcement officers do not communicate directly with aregulated person who is represented by a lawyer except with such lawyer’s consent?

STATEMENT OF FACTS

A Texas governmental agency issues licenses to qualified persons to engage in a specific business. Theagency is comprised of a legal division and an enforcement division. The legal division represents theagency in obtaining enforcement orders but does not have supervisory authority or control over theenforcement division.

The enforcement division of the agency, which is staffed by licensed officers who are not lawyers,investigates complaints against persons regulated by the agency and monitors such persons' compliancewith orders previously issued for violations of the agency's regulations. Lawyers in the agency’s legaldivision are not involved in the investigation of violations until the matter is referred to the legal divisionfor the possible issuance of a disciplinary order. After a disciplinary order is issued against a regulatedperson, the enforcement division, without further involvement of the legal division, is charged withmonitoring the regulated person's compliance with the requirements of the order, which may continue forup to five years.

In most cases, regulated persons that are investigated by the agency’s enforcement division or are subjectto monitoring for compliance with a disciplinary order are represented by legal counsel with respect to theagency’s regulation. In some cases, lawyers for regulated persons have formally requested that theagency’s enforcement division personnel communicate with a regulated person only through the particularregulated person’s lawyer.

DISCUSSION

Rule 4.02(a) of the Texas Disciplinary Rules of Professional Conduct provides as follows:

“(a) In representing a client, a lawyer shall not communicate or cause or encourage another tocommunicate about the subject of the representation with a person, organization or entity of governmentthe lawyer knows to be represented by another lawyer regarding that subject, unless the lawyer has theconsent of the other lawyer or is authorized by law to do so."

Rule 4.02(a) thus prohibits a lawyer from communicating directly concerning a matter with a personknown to be represented by a lawyer with respect to that matter unless the person’s lawyer consents or thecommunication is otherwise authorized by law. In addition to generally prohibiting direct communicationsby a lawyer with a represented person except with the consent of the lawyer for the represented person,Rule 4.02(a) also prohibits the lawyer from indirectly effecting such communications by causing orencouraging a non-lawyer to communicate with the represented person in such circumstances. As noted inComment 1 to Rule 4.02, Rule 4.02(a) prohibits communications that are in form between a lawyer’sclient and another person represented by counsel where, “because of the lawyer’s involvement in devisingand controlling their content,” such communications are in substance between the lawyer and therepresented person. However, as noted in Comment 2 to Rule 4.02, Rule 4.02(a) does not prohibitcommunications between a lawyer’s client and persons represented by counsel “as long as the lawyerdoes not cause or encourage the communication without the consent of the lawyer for the other party.”This Comment further recognizes that Rule 4.02(a) “does not impose a duty on a lawyer to affirmativelydiscourage communication between the lawyer’s client and other represented persons, organizations or

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entities of government.”

In this case, the lawyer’s client is the governmental agency. It is assumed for purposes of this opinion thatthere is no other legal authorization for the communications in question if consent of a regulated person’slawyer for direct communications with the regulated person would otherwise be required by Rule 4.02(a).However, provided that the agency’s lawyer does not have direct supervisory authority over theenforcement personnel of the agency and does not cause or encourage communications by such personnelwith represented persons, neither Rule 4.02(a) nor any other provision of the Texas Disciplinary Rules ofProfessional Conduct imposes restrictions on the lawyer with respect to communications by enforcementpersonnel with represented persons. There is likewise no requirement under the Texas Disciplinary Rulesof Professional Conduct that a lawyer for the agency comply with a request from a regulated person’slawyer that all communications by enforcement personnel with the regulated person be carried outthrough the lawyer.

A different analysis would apply if the agency lawyer had direct supervisory authority over enforcementpersonnel of the agency. In that event, Rule 5.03 would make the lawyer responsible for the actions of theemployees supervised by the lawyer. Under Rule 5.03(b), the lawyer would be in violation of the TexasDisciplinary Rules of Professional Conduct if the lawyer ordered, encouraged or permitted employeesunder the lawyer’s direct supervision to communicate with represented persons contrary to therequirements of Rule 4.02(a).

CONCLUSION

Under the Texas Disciplinary Rules of Professional Conduct, a lawyer for a Texas governmental agencyis not required to limit communications by the agency's enforcement officers who are not subject to thelawyer’s direct supervisory authority with regulated persons who are represented by lawyers. However, alawyer for a governmental agency is not permitted to communicate directly with a regulated person that isrepresented in the matter by a lawyer who has not consented to the communications and is not permittedto cause or encourage such communications by other agency employees, and the agency lawyer isobligated to prevent such communications by employees over whom the lawyer has direct supervisoryauthority.

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TEXAS DISCIPLINARY RULES OF PROFESSIONAL CONDUCT(Cited in Texas Ethics Opinion 600)

4.02 Communication with One Represented by Counsel

(a) In representing a client, a lawyer shall not communicate or cause or encourage another tocommunicate about the subject of the representation with a person, organization or entity of governmentthe lawyer knows to be represented by another lawyer regarding that subject, unless the lawyer has theconsent of the other lawyer or is authorized by law to do so.

(b) In representing a client a lawyer shall not communicate or cause another to communicate about thesubject of representation with a person or organization a lawyer knows to be employed or retained for thepurpose of conferring with or advising another lawyer about the subject of the representation, unless thelawyer has the consent of the other lawyer or is authorized by law to do so.

(c) For the purpose of this rule, organization or entity of government includes: (1) those persons presentlyhaving a managerial responsibility with an organization or entity of government that relates to the subjectof the representation, or (2) those persons presently employed by such organization or entity and whoseact or omission in connection with the subject of representation may make the organization or entity ofgovernment vicariously liable for such act or omission.

(d) When a person, organization, or entity of government that is represented by a lawyer in a matter seeksadvice regarding that matter from another lawyer, the second lawyer is not prohibited by paragraph (a)from giving such advice without notifying or seeking consent of the first lawyer.

Comment:

1. Paragraph (a) of this Rule is directed at efforts to circumvent the lawyer-client relationship existingbetween other persons, organizations or entities of government and their respective counsel. It prohibitscommunications that in form are between a lawyers client and another person, organization or entity ofgovernment represented by counsel where, because of the lawyers involvement in devising andcontrolling their content, such communications in substance are between the lawyer and the representedperson, organization or entity of government.

2. Paragraph (a) does not, however, prohibit communication between a lawyers client and persons,organizations, or entities of government represented by counsel, as long as the lawyer does not cause orencourage the communication without the consent of the lawyer for the other party. Consent may beimplied as well as expressed, as, for example, where the communication occurs in the form of a privateplacement memorandum or similar document that obviously is intended for multiple recipients and thatnormally is furnished directly to persons, even if known to be represented by counsel. Similarly, thatparagraph does not impose a duty on a lawyer to affirmatively discourage communication between thelawyers client and other represented persons, organizations or entities of government. Furthermore, itdoes not prohibit client communications concerning matters outside the subject of the representation withany such person, organization, or entity of government. Finally, it does not prohibit a lawyer fromfurnishing a second opinion in a matter to one requesting such opinion, nor from discussing employmentin the matter if requested to do so. But see Rule 7.02.

3. Paragraph (b) of this Rule provides that unless authorized by law, experts employed or retained by alawyer for a particular matter should not be contacted by opposing counsel regarding that matter withoutthe consent of the lawyer who retained them. However, certain governmental agents or employees such aspolice may be contacted due to their obligations to the public at large.

4. In the case of an organization or entity of government, this Rule prohibits communications by a lawyerfor one party concerning the subject of the representation with persons having a managerial responsibilityon behalf of the organization that relates to the subject of the representation and with those personspresently employed by such organization or entity whose act or omission may make the organization or

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entity vicariously liable for the matter at issue, without the consent of the lawyer for the organization orentity of government involved. This Rule is based on the presumption that such persons are so closelyidentified with the interests of the organization or entity of government that its lawyers will representthem as well. If, however, such an agent or employee is represented in the matter by his or her owncounsel that presumption is inapplicable. In such cases, the consent by that counsel to communicate willbe sufficient for purposes of this Rule. Compare Rule 3.04(f). Moreover, this Rule does not prohibit alawyer from contacting a former employee of a represented organization or entity of a government, norfrom contacting a person presently employed by such an organization or entity whose conduct is not amatter at issue but who might possess knowledge concerning the matter at issue.

5.03 Responsibilities Regarding Nonlawyer Assistants

With respect to a non-lawyer employed or retained by or associated with a lawyer:

(a) a lawyer having direct supervisory authority over the nonlawyer shall make reasonable efforts toensure that the persons conduct is compatible with the professional obligations of the lawyer; and

(b) a lawyer shall be subject to discipline for the conduct of such a person that would be a violation ofthese rules if engaged in by a lawyer if:

(1) the lawyer orders, encourages, or permits the conduct involved; or(2) the lawyer:

(i) is a partner in the law firm in which the person is employed, retained by, or associated with; or is thegeneral counsel of a government agency's legal department in which the person is employed, retained byor associated with; or has direct supervisory authority over such person; and

(ii) with knowledge of such misconduct by the nonlawyer knowingly fails to take reasonable remedialaction to avoid or mitigate the consequences of that persons misconduct.

Comment:

1. Lawyers generally employ assistants in their practice, including secretaries, investigators, law studentinterns, and paraprofessionals. Such assistants act for the lawyer in rendition of the lawyers professionalservices. A lawyer should give such assistants appropriate instruction and supervision concerning theethical aspects of their employment, particularly regarding the obligation not to disclose informationrelating to representation of the client, and should be responsible for their work product. The measuresemployed in supervising non-lawyers should take account of the fact that they do not have legal trainingand are not subject to professional discipline.

2. Each lawyer in a position of authority in a law firm or in a government agency should make reasonableefforts to ensure that the organization has in effect measures giving reasonable assurance that the conductof nonlawyers employed or retained by or associated with the firm or legal department is compatible withthe professional obligations of the lawyer. This ethical obligation includes lawyers having supervisoryauthority or intermediate managerial responsibilities in the law department of any enterprise orgovernment agency.

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