At our Judge’s Panel Luncheon, a question came up regarding whether a parent attorney could attend a child and family team meeting or otherwise communicate with a DCFS caseworker without the presence of an AAG. The following advisory opinion offers the answer.
Utah Rules of Judicial Administration Chapter 13 Rule 4.2 prohibits contact of represented persons by attorneys unless authorized by law, rule, or court order.
In 1993, the advisory committee was asked in regards to the application of this rule in the context of agency employees and the Attorney General’s office.
The office provided the following opinion:
A lawyer representing a government department may not prevent his non-government counterpart from contacting any employee of the government office or department outside his/her presence, whether or not the communication involves a matter in litigation. However, if counsel for a private party contacts a government employee about pending litigation, counsel must inform the government employee (a) about the pending litigation or that the matter has been referred to agency counsel and (b) about his representation of a private party in that litigation.
Utah Ethics Adv. Op. No. 115 (1993).
This opinion was reaffirmed in July 1994 by Utah Ethic Adv.Op.No. 115R (1994).
In short, yes, a parental defense attorney can speak with the caseworker regarding the case--and even attend a family group meeting--without the AAG being present and without the AAG's permission, if the attorney discloses to the worker the existence of the litigation and discloses who the attorney represents.
Below is a redacted response I received from an assistant attorney general on this topic:
ReplyDelete"First, rule 4.2 changed significantly since that opinion was issued. Second, comment 5 to 4.2 specifically limits attorneys in your shoes from contacting [DCFS investigator] regarding a case you are litigating, while you may contact [] (regional director) or someone else similar who will not be a witness in our cases if you have reason to seek redress with DCFS on this case. Third, ever since the American Bar Association changed the model rule (from when that opinion was issued), every single jurisdiction who has issued an ethics opinion has taken the same position I have, that you may contact a non-witness regarding a case in litigation but not a witness. Fourth, another defense attorney raised this opinion in [the attorney's] defense during a case before Judge [], [the attorney] was still sanctioned by [the judge] after [the attorney] refused to stop contacting DCFS when I told [the attorney] to stop. The ethics opinions also state they are not to be relied upon and are not controlling, so you rely upon them at your own peril. Fifth, the Utah State Bar Office of Professional Conduct has disciplined attorneys for this scenario, and they have given many training I have personally attended when this was the topic, one such training occurred when the Office of the Guardian ad Litem asked them to address the issue of if we could restrict their access as well to DCFS workers under this rule. [Local GALs] both were at that particular training if you would like to speak to them about this. The office of professional conduct said that we could not due to 78A-6-902 and 62a-4a giving GAL's direct access to DCFS but that otherwise attorneys including defense attorneys may not contact the specific caseworkers on our cases directly."