You have inquired whether in your representation of real estate developers you may, under Maryland Rule 19-304.2 (“Rule 4.2”), petition the Mayor, Planning Director, and/or Council member(s) of a city (“the City”) for assistance in working to obtain permits in a timely fashion where an application had previously been denied. You have related that it is your experience for one or more City Attorneys to claim you may not speak to such individuals as they are represented parties who may bind the City by their statements, even at early stages of the permitting process where “foundation letters” or other initial documents have been denied but no formal litigation or appeal has been initiated. You desire to contact government officials to encourage approval of the permit in order to avoid lengthy litigation that will unduly delay the development process. Such contact may be permissible so long as it meets the requirements of Rule 4.2(c). Rule 4.2 of the Maryland Rules of Professional Conduct, states:

(a) Except as provided in section (c) of this Rule, in representing a client, an attorney shall not communicate about the subject of the representation with a person who the attorney knows is represented in the matter by another attorney unless the attorney has the consent of the other attorney or is authorized by law or court order to do so.

(b) If the person represented by another attorney is an organization, the prohibition extends to each of the organization’s (1) current officers, directors, and managing agents and (2) current agents or employees whether the communication falls within the “government official redress” exception in subsection (c) to Rule 4.2’s general prohibition on direct contact with a represented client; and (3) whether the disclosures required by Rule 4.2(b) have been made.

First, whether or not a government entity is represented by counsel can be a fact specific inquiry. [1] The Rule applies where a lawyer “knows” that a person is represented by another lawyer. See Rule 4.2(a). In working with a government agency, Rule 4.2 does not apply until an attorney is notified by the agency or its counsel that the agency is represented or the facts otherwise give the non-government attorney such knowledge. Under the facts as stated here, attorneys representing the City have expressly informed you of their representation. [2]

Second, the “government official redress” exception in Rule 4.2(c) may still allow direct contact with government officials such as a Mayor, Planning Director, or Council member so long as the appropriate preconditions are met. In particular, the contacted individual must have “the authority to redress the grievance” about which the attorney seeks to communicate. Rule 4.2(c) and its comments do not directly address the question of when a government official has “the authority to redress the grievance” about which an attorney seeks to speak, and the Court of Appeals also has not addressed the issue. However, Comment 9 to Rule 4.2 does provide details as to the reasons why direct access to government officials is permitted in some circumstances where such direct discussions would not be permitted between an attorney and a represented private person:

Section (c) of this Rule recognizes that special considerations come into play when an attorney is seeking to redress grievances involving the government. Subject to certain conditions, it permits communications with those in government having the authority to redress the grievances (but not with any other government personnel) without the prior consent of the attorney representing the government in the matter. Section (c) of this Rule does not, however, permit an attorney to bypass attorneys representing the government on every issue that may arise in the course of disputes with the government. Rather, the section provides attorneys with access to decision makers in government with respect to genuine grievances, such as to present the view that the government’s basic policy position with respect to a dispute is faulty or that government personnel are conducting themselves improperly with respect to aspects of the dispute. It does not provide direct access on routine disputes, such as ordinary discovery disputes or extensions of time. (Emphasis added). Based upon this Comment, it is reasonable to conclude that the attorney’s communications with a represented government official will need to be tailored to the particular official’s proper scope of authority, whether that is executive, administrative, or legislative.

While we are unable to conduct a detailed review of the specific City processes to which the inquiry refers, the Committee can say that a Mayor, a Planning Director, or a City Council member certainly may have authority over different aspects of a specific zoning dispute, the conduct of government personnel, or the zoning process itself. One official may have the power to reverse the denial of a permit, another may have the power to oversee the government employees engaged in the permitting process, and another may have legislative oversight authority over the processes or the authority to enact changes to those processes. The attorney who chooses to communicate with a government official directly, knowing that the government official is represented by counsel, will need to ensure that such communications relate to the substance of the grievance for which redress is sought (and not ancillary issues such as ‘extensions of time,’ see Rule 4.2, Comment 9); and that the communications are appropriately limited to those matters within the official’s scope of authority.

Third, the attorney who seeks to communicate under Rule 4.2(c) must “first make the disclosures specified in section (b) of this Rule.” Under Rule 4.2(b), the attorney must disclose to the government official “the attorney’s identity and the fact that the attorney represents a client who has an interest adverse to the organization.” The attorney also has an obligation to conduct such discussions in a manner designed not to solicit or cause disclosure of confidential attorney client communications. See Rule 4.4(b).

An attorney also should consider notifying opposing counsel in advance of such communications. Maryland’s version of Rule 4.2 does not require such notice. Rule 4.2 is based upon the Model Rules promulgated by the American Bar Association (“ABA”). The ABA’s Rule 4.2 does not contain a subsection (c) or an express exception that would permit an attorney to engage in direct discussions about a pending matter with a public official represented by counsel.

The ABA created such an exception in 1997 however, in an opinion by the ABA Standing Committee on Ethics and Professional Responsibility, which concluded that such an exception was required to protect a citizen’s First Amendment right to petition the government in controversies with government officials. See ABA Formal Opinion 97-408 Communication with Government Agency Represented by Counsel (1997). The ABA Committee concluded that lawyers may communicate with represented public officials without seeking permission from opposing counsel so long as: (1) the officials to be contacted are in a position to take or recommend action in the matter and the substance of the communication relates to policy issues including settlement; and (2) the communicating lawyer gives opposing counsel advance notice of the impending communication so that they can give appropriate advice to their clients as to how to respond to the inquiry. Id.

The Maryland Rules Committee codified the first of these requirements into Rule 4.3(c), which narrows the permissible communications to the substance of the dispute and the authority of the official, but it did not adopt the second requirement that an attorney must inform opposing counsel prior to such communications. Maryland’s exception is broader than that adopted by the ABA Committee.

At the same time, the Committee suggests that an attorney who seeks direct interaction
with a public official should consider notifying counsel with whom the attorney has been dealing on a matter. An attorney may wish to consider including opposing counsel in such direct communications even where not strictly required – by doing so, the attorney may avoid accusations that he or she delved into matters outside of the official’s authority or sought protected communications.

Finally, Rule 4.2(c) does not provide an ‘exception’ to substantive or procedural rules that may limit contacts with public officials or allow communications that may be prohibited by other ethical considerations. An attorney who seeks to contact a public official directly within the context of a proceeding should make sure that such contact is permitted under the rules applicable to that type of proceeding and should consider rules such as Rule 3.5(a) (which addresses certain ex parte communications and other limitations when interacting with a tribunal).

1 Please note that the Committee has broadly addressed issues raised by Rule 4.2 in its advisory opinion 2017-02,
which is available online at

2 Nothing in the inquiry implies that the City and County Attorneys are not in fact representing the City or County in the matters at hand, and the Committee does not need to consider the effect that a “bad faith” assertion of representation may have on the application of Rule 4.2.