Communication with Adverse Party to Request Public Records
Adopted: October 20, 1995
Opinion rules that a lawyer may communicate with a custodian of public records, pursuant to the North Carolina Public Records Act, for the purpose of making a request to examine public records related to the representation although the custodian is an adverse party whose lawyer does not consent to the communication.
Inquiry:
E, a former employee of R County, brought suit against R County and the county manager, the county personnel officer, and the county building inspector in both their personal and official capacities. The defendants are represented by Attorney A, the county attorney, and by outside legal counsel, Attorney L. E is represented by Attorney X. The county manager is the custodian of the public records of R County pursuant to the North Carolina Public Records Act, Chapter 132 of the General Statutes. Attorney X made a public records request, pursuant to G.S. §132-6, to the county manager to inspect and examine all mobile telephone records for the county building inspector. Attorney X copied Attorney A on the written request for the public records but he did not obtain the consent of Attorney A or Attorney L to the direct communication with their client, the county manager. Subsequently, a public records request for files from the building inspections department of R County was made by a person believed to be a part-time employee in Attorney X's law firm. This request was directed to the building inspector as the custodian of these public records. A courtesy copy of this request was sent by Attorney X to Attorney A. May a lawyer make a direct written request to inspect public records related to the representation of a client if the custodian of the public records is an adverse party represented by legal counsel and the custodian's attorney does not consent to the communication?
Opinion:
Yes, a lawyer may communicate directly with the custodian of public records for the purpose of making a public records request regardless of whether the custodian's lawyer consents to the communication. Rule 7.4(a) of the Rules of Professional Conduct permits a lawyer to "communicate or cause another to communicate about the subject of the representation with a party the lawyer knows to be represented by another lawyer in the matter" in only two situations: (1) the lawyer has the consent of the opposing party's lawyer; or (2) the communication is "authorized by law." G.S. §132-6 provides
[e]very person having custody of public records shall permit them to be inspected and examined at reasonable times and under his supervision by any person, and he shall furnish certified copies thereof on payment of fees as prescribed by law.
Confidential communications between a government body and its attorney are specifically exempted from the definition of "public records" by G.S. §132-1.1(a). By this exemption, it appears that the General Assembly contemplated the extent to which the representation of a government body by a lawyer should limit the right to request public records. Further, in News and Observer Publishing Company v. Poole, 330 N.C. 465, 412 S.E. 2d 7 (1992), the North Carolina Supreme Court held that a clear statutory exemption must exist in order to limit the liberal access to public records allowed by the Act. Id. at 474-475, 412 S.E. 2d at ___. No exemption exists in the Act for requests for public records when the custodian is represented by legal counsel in a particular matter.
Although not required by the Rules of Professional Conduct, it is professionally courteous to provide a copy of a written request to inspect public records to the lawyer for the custodian of the records when the public records relate to a particular matter in which the custodian is represented by legal counsel.