Hon. Members of the Arizona Supreme Court,

I write to express some concerns about the changes the Court made to the language of the proposed ER 4.2 amendment.

The relevant language from the petition as submitted reads: “If a lawyer intends to communicate with a representative of a government entity on behalf of a client, other than in the course of an official public proceeding ….” The Court’s version of that same language reads: “A lawyer may communicate with a representative of a government entity on behalf of a client, other than in the course of an official public proceeding, concerning a matter that is the subject of pending or anticipated future litigation ….”

The modifications changed what was originally a description of a situation for which the remainder of the new provision gives ethical guidance into a positive recognition (or grant?) of authority. That is odd, because the right of a lawyer to communicate with public officials and bodies isn’t a matter within the scope of the ethics rules; the question for the ethics rules is whether the lawyer may do so without first obtaining the government lawyer’s consent. The modified language fails to make that connection.

More importantly, the revised language makes a troubling distinction between litigation and non-litigation communications. The new provision, as modified, states that a lawyer who intends to communicate with a public body or official about a litigation matter must notify the government lawyer but need not obtain the government lawyer’s consent; it doesn’t, however, address how a communication regarding a non-litigation matter should be treated. There is no good reason for the distinction.

Imagine, for example, a lawyer who, on behalf of a downtown business owner, wants to urge a city council member to introduce a new ordinance designed to lessen the presence of unsheltered individuals on city sidewalks. Assuming the lawyer knows that the government entity is being advised about this very fraught area of the law by the government’s lawyer, the communicating lawyer has a duty under ER 4.2 to obtain the government lawyer’s consent before engaging in this communication. But the communication arguably falls within the client’s First Amendment rights. Will the lawyer violate the rule if they fail to obtain the government lawyer’s permission? Will the government lawyer be interfering with the First Amendment rights of the other lawyer’s client if they insist that their consent is required and then refuse to give it? The purpose of the proposed rule change was to resolve this precise quandary. But the revised language fails to do so.

The original language from the petition doesn’t distinguish between litigation-related and non-litigation communications.
Under the rule change, as originally drafted, in either situation—if ER 4.2 applies but there is a colorable argument that the communication falls within the First Amendment exception, as in the above hypothetical—the communicating lawyer does not need consent but must give notice. The modified language provides no guidance regarding a non-litigation communication under these circumstances. Yet, as noted in the petition, such communications raise the same concerns as litigation-related communications: “a lawyer attempting to persuade a government official to take a particular course of action, without the consent or knowledge of the government’s lawyer who is advising the government regarding the issue, can cause considerable mischief even when there is not an active legal dispute between the parties.” I urge the Court to remove the added language “concerning a matter that is the subject of pending or anticipated future litigation.”

I do want to note one final thing, however. The phrase “other than in the course of an official public proceeding,” which was in the original proposal and remains in the Court’s modified version, also creates an ambiguity. By excepting communications in an official proceeding from the scope of the new provision, it creates a problem similar to that described above. In fact, one can use the same hypothetical to illustrate the point. Imagine that the lawyer wants to address the City Council in a public meeting rather than discuss the proposal with a member of the council. The exception for communications in an official proceeding makes it clear that the new provision about providing notice does not apply; the lawyer need not provide notice to the government lawyer of the intended communication. But the failure of the new provision to address the situation leaves us with the original quandary: must the communicating lawyer obtain the government lawyer’s consent? And would a refusal to give that consent mean that the government lawyer is interfering with the First Amendment rights of the communicating lawyer’s client?

I urge the Court to remove this language so that this type of communication is treated the same as other communications. If the Court believes ER 4.2’s consent requirement should not apply to communications in a public proceeding, it would be better to state that clearly in a separate provision.
Thank you for your consideration.

Sincerely,
Regina L. Nassen
#014574
520-400-4818
[email protected]
[email protected]