So long as it is not related to litigation; then you need to go through their lawyers Senior EditorLawyers are not constrained from directly approaching government officials unless it involves a matter in which the government agency is specifically represented by counsel, according to the Professional Ethics Committee.The committee ratified a Bar staff ethics opinion that had been modified by a subcommittee, addressing a question raised by a law firm. The firm deals with a financial regulatory agency and has four lawsuits pending on behalf of various clients.The firm wanted to know if it could approach agency employees directly, without going through the agency’s general counsel when representing clients on matters not related to the litigation.Aside from that question, the committee also rejected a proposed Bar rule to regulate lawyers when they outsource paralegal work to other countries and debated and ultimately tabled a question on whether a lawyer could own a nonlegal firm that attempts to negotiate a reduction in medical liens due when a client’s personal injury case is concluded.The staff opinion on approaching government officials analyzed Rule 4-4.2 It delineated three scenarios, and concluded, “Rule 4-4.2, as clarified by its comments, prohibits communications with protected employees about the subject matter of a specific controversy or matter on which an attorney knows or has reason to know that a governmental attorney is providing representation unless the agency’s attorney first consents to the communication. The rule does not prohibit an attorney from communicating with other agency employees who are not protected employees, nor does it prohibit an attorney from communicating with protected employees on subjects unrelated to those controversies in which the agency attorney is actually known to be providing representation.”The opinion defines a “protected employee” as one “who supervises, directs, or regularly consults with the organization’s lawyer concerning the matter or has authority to obligate the organization with respect to the matter, or whose act or omission in connection with that matter may be imputed to the organization for purposes of civil or criminal liability.” This definition is taken from the comment to Rule 4-4.2.The opinion also cautioned that attorneys must be careful not to discuss matters under litigation or likely to become the subject of litigation when they contact government employees.Committee member Jay Martus, a corporate general counsel, said the opinion, which had been reworked by a subcommittee, was more lax than the rule.“It says as a consequence the inquiring attorneys are not prohibited from communicating with decisionmakers on other topics,” he said. “The rule does require those parties in state agencies who are in fact represented by the general counsel, that the general counsel should be in a position to be consulted with before those state agency officials are contacted.. . . “What you’re doing is saying Rule 4-4.2 only applies when they have actual knowledge that the general counsel is involved in this specific matter. And that the general counsel can be avoided if the general counsel is not known to be involved in this particular issue.”In the private arena, Martus said, “If someone is known to be represented, you don’t go to that lawyer’s client, you go to the lawyer.”Others disagreed, noting the comment to the rule recognizes that there is a constitutional right in normal circumstances to discuss issues with public officials.“Isn’t there a distinction that we’re making here between the general counsel of a private corporation and the general counsel to a government body to which there are constitutional rights?” asked committee member Lee Haas. “Or how to deal with the general counsel who says you can’t meet with anyone from the agency because he represents the whole agency?”Bar Board of Governors members Larry Sellers said the committee should make sure that restrictions are not more severe for lawyers — when they are acting in a nonlegal capacity — than for nonlawyers, such as lobbyists, who regularly deal with government agencies.The committee eventually voted to approve the staff opinion, with minor changes, with Martus casting the only dissenting vote.On sending outsourcing paralegal services to other countries — a practice known as “offshoring” — a subcommittee headed by Martus presented a suggested rule. The Bar Board of Governors, after approving a PEC-approved ethics opinion, asked the committee to look at the issue further to see if guidelines or a rule change was needed.The committee recommended guidelines, which were approved by the board and are posted on the Bar’s Web site, and the subcommittee continued to look at a possible rule change.Martus said the proposed rule defined the offshore work as including only legal support services that do not constitute the practice of law. It would then require that the client give informed consent to sending the information overseas, that the lawyer investigate the qualifications of the person or company performing the work, and that the attorney has a responsibility to supervise the work.“In short, do an investigation, and get informed consent before you send the work to a jurisdiction that may have totally different rules,” he said.But other committee members expressed skepticism about the proposal.Committee member Bill Wagner said it was too complex and perhaps unneeded. Any rule should be limited to a requirement that the client be informed about the offshoring and its risks and give consent, he said.Committee member Tim Chinaris agreed, saying trying to write a rule on offshoring would be like trying to write a rule on using cell phones, e-mails, and other fast-changing technologies because it will always be behind actual practice. He said existing rules and the approved guidelines are adequate.Dore Louis, who served on the subcommittee, said he doesn’t think offshoring should be allowed, “but the rule is needed if that is going to happen.. . . It’s a rule that recognizes the problems inherent in sending a client’s information all over the world. In my opinion, it’s going to happen, but there needs to be a rule of professional conduct that addresses it.”Others argued the rule didn’t supply enough details, such as whether those doing the work in other countries should have to read and be familiar with Florida ethics rules, and whether lawyers should be required to make sure that happens.The committee, after extensive debate, rejected the proposed rules by a 9-17 vote.The medical lien resolution involved an appeal from an inquiry which asked “whether it was permissible [for a lawyer] to hold an interest in a lien resolution business that would resolve medical liens in personal injury cases and would bill out the use of that service as a cost to clients in personal injury cases.” A Bar staff opinion said that activity would be impermissible because it raised questions involving excessive fees, exceeding the allowed contingency fee schedule, failed to provide competent representation to the client, and implicated unlicensed practice of law issues.Martus said he was concerned that negotiations to reduce medical liens, especially with governmental agencies, could involve complex legal matters that would seem to raise UPL issues.Wagner said it would be difficult for a personal injury attorney to advise a client on settling a case if it was unclear how much the client would net because lien issues had not been negotiated. “To farm it out and charge the client more money seems unfair,” he added.But former Bar President Howard Coker, who attended the meeting to address the issue, said there can be benefits for clients.“Many times [settlement] companies have better lines of communications [with Medicaid, Medicare, and medical providers] than the attorney who calls up out of the blue,” he said. “We always make the attempt to reduce the liens, but what I’m concerned about is it takes an awful amount of time and it ties up the money. If the firm can do it quicker, then it’s in the client’s interest.”Dan Alvarez, representing the company proposing to do the lien negotiating and which asked the PEC for its opinion, said the company can hire people with expertise and contacts with government agencies and thereby expedite settling those liens.But after further discussion, the committee approved a motion to table the matter pending input from the Bar’s UPL office.The committee also considered a related ethics inquiry, which asked if an attorney could take a case to negotiate a reduction of medical liens under a reverse contingency fee contract. The committee, after discussion, voted to uphold the staff opinion, with a minor change: that such an agreement would not be ethical because attorneys typically agree to handle such lien negotiations under the original case contingency fee agreement, and, therefore, any additional fee for negotiating the lien would constitute an excessive fee.On another matter, the committee voted to recommend amendments to Rules 4-1.12, 4-2.4, and 4-8.3. Those amendments would specify that an attorney is exempt from the professional misconduct reporting requirement when the attorney gained the information when acting as a mediator, arbitrator, or other third neutral and in a setting that is privileged or confidential under applicable law.That recommendation now goes to the Bar Board of Governors for its review. August 15, 2009 Gary Blankenship Senior Editor Regular News It’s OK to talk directly with public officials
It’s OK to talk directly with public officials
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