Communication with Adverse Party to Request Public Records
Adopted: October 21, 2011
Opinion rules that, pursuant to the North Carolina Public Records Act, a lawyer may communicate with a government official for the purpose of identifying a custodian of public records and with the custodian of public records to make a request to examine public records related to the representation although the custodian is an adverse party, or an employee of an adverse party, whose lawyer does not consent to the communication.
Inquiry #1:
Adopted in 1995, RPC 219 rules that a lawyer may communicate with a custodian of public records, pursuant to the North Carolina Public Records Act, N.C. Gen. Stat. Chap. 132, for the purpose of making a request to examine public records related to a representation although the custodian and the government entity employing the custodian are adverse parties and the lawyer for the custodian and the government entity does not consent to the communication.
Has the ruling in this opinion changed in light of the comprehensive revisions to the Rules of Professional Conduct in 1997 and 2003?
Opinion #1:
No. RPC 219 relies upon Rule 7.4(a), the “anti-contact rule” 1 at that time, and specifically applies the provision in the rule that allows a lawyer to communicate with a represented opposing party without the consent of opposing counsel if the communication is authorized by law. Rule 7.4(1) provided at that time:
[d]uring the course of his or her representation of a client, a lawyer shall not
(1) 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 unless the lawyer has the consent of the other lawyer or is authorized by law to do so.
The essential provisions of the anti-contact rule were not changed when the Rules were revised and renumbered in 1997 and again revised in 2003. The current version of the rule, Rule 4.2(a), provides:
[d]uring the representation of a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order. It is not a violation of this rule for a lawyer to encourage his or her client to discuss the subject of the representation with the opposing party in a good-faith attempt to resolve the controversy.
ABA Formal Ethics Opinion 95-396 (1995) observes that Model Rule 4.2’s exception permitting a communication “authorized by law” is satisfied by “a constitutional provision, statute, or court rule, having the force and effect of law, that expressly allows a particular communication to occur in the absence of counsel.”
N.C. Gen. Stat. §132-6(a) requires that:
[e]very custodian of public records shall permit any record in the custodian's custody to be inspected and examined at reasonable times and under reasonable supervision by any person, and shall, as promptly as possible, furnish copies thereof upon payment of any fees as may be prescribed by law.
The statute authorizes direct communication with a custodian of public records for the purpose of inspecting and furnishing copies of public records and remains an exception to the communications prohibited in current Rule 4.2(a).
Inquiry #2:
RPC 219 does not examine whether there are limitations on the content of the communications with the public records custodian. Apart from communications for the purposes of submitting a request for public records, arranging a convenient time to inspect the records, and inspecting the records, may the lawyer communicate with the custodian for the purpose of identifying the documents sought or for any other purpose related to the representation?
Opinion #2:
A lawyer may communicate with a custodian of public records for the purposes set forth in N.C. Gen. Stat. §132-6(a), to inspect, examine, or obtain copies of public records. To the extent that the lawyer must communicate with the custodian to identify the records to be inspected, examined, or copied, the communication is in furtherance of the purpose of the Public Records Act2 to facilitate access to public records and is allowed without obtaining the consent of opposing counsel. Such communications should be limited to the identification of records and should not be used by the lawyer as an opportunity to engage in communications about the substance of the disputed matter.
Inquiry #3:
The identity of the custodian of public records may vary depending upon the nature of the records sought and the organization of the government entity. RPC 219 does not examine any limitations on the lawyer’s inquiries of government employees or officials for the purpose of determining the identity of the custodian. May the lawyer speak to government employees for this purpose without the consent of the lawyer for the government?
Opinion #3:
N.C. Gen. Stat. §132-2 provides that:
[t]he public official in charge of an office having public records shall be the custodian thereof.
A lawyer may communicate with government employees, without obtaining the consent of the government’s lawyer, for the purpose of identifying the public official in charge of an office and therefore the custodian of the records of that office.
Endnotes
- 1. This term is used frequently by the ABA and others to refer to the rule that restricts lawyers from communicating directly with represented persons. See e.g., ABA Formal Ethics Opinion 95-396 (1995).
- 2. The public policy for the Public Records Act is set forth in N.C. Gen. Stat. §132-1(b): The public records and public information compiled by the agencies of North Carolina government or its subdivisions are the property of the people. Therefore, it is the policy of this state that the people may obtain copies of their public records and public information free or at minimal cost unless otherwise specifically provided by law. As used herein, "minimal cost" shall mean the actual cost of reproducing the public record or public information.