OPINION 474
June 1991

Statement of Facts

Plaintiff has sued a municipality. The city attorney of the municipality represents the city and is engaged in settlement negotiations with plaintiff through plaintiff's counsel. Defendant, with the city counsel's approval, has offered a certain sum in settlement. Plaintiff has taken the position that the amount offered is inadequate. Unbeknownst to the city attorney's office, plaintiff's counsel telephones an individual counsel member to express his disapproval of the city's settlement offer. When questioned about the propriety of such contact, plaintiff's counsel refuses to acknowledge that the prohibition of such contact with the opposition's client is applicable when the client is a municipality.

Question Presented

Is the communication by plaintiff's counsel with city counsel members described above a violation of Rule 4.02 of the Texas Disciplinary Rules of Professional Conduct?

Discussion

Rule 4.02 of the Texas Disciplinary Rules of Professional Conduct provides in part as follows:

(a) In representing a client, a lawyer shall not communicate or cause or encourage another to communicate about the subject of the representation with a person, organization or entity of government the lawyer knows to be represented by another lawyer regarding that subject, unless the lawyer has the consent of the other lawyer or is authorized by law to do so.

(b) For the purpose of this rule, "organization or entity of government" includes:

    1. those persons presently having a managerial responsibility with an organization or entity of government that relates to the subject of the representation, or
    2. those persons presently employed by such organization or entity and whose act or omission in connection with the subject of representation may make the organization or entity of government vicariously liable for such act or omission.

Conclusion

Yes. These provisions of Rule 4.02 prohibit communications by a lawyer for one party concerning the subject of the representation with persons having a managerial responsibility on behalf of the organization that relates to the subject matter of the representation.