Legal Ethics Opinion #1537

Communication With Adverse Party: Special Education Hearing;
Attorney Representing Child Contacting School Employees

You have presented a hypothetical situation in which an attorney
represents a disabled child and his/her parents in a special
education matter.  Following the attorney's request for a due
process hearing, the attorney would like to talk with the
teachers and school professionals who have conducted evaluations
as well as with the members of the team which develops the
Individualized Education Program (IEP).  At the meeting convened
to develop the IEP, one school representative is designated with
authority to commit the school to providing services and one
employee, generally the same person, is designated as the school
board's representative in the due process hearing.

You further indicate that there is no formal discovery in a due
process hearing, although exhibits must be exchanged five days
prior to the hearing.  The parents can request all the child's
educational records prior to the initiation of the hearing and
the school board can also request the child's records which may
be relevant to the issues presented at the hearing.

Finally, you indicate that counsel for the local school board
prohibits contact with any school employees, which prohibition
may extend to school board counsel denying consent to interviews
or insisting on being present at any such interviews, effectively
preventing parents' counsel from receiving interpretation of
reports and other information.

You have asked the committee to opine whether, under the facts of
the inquiry, it is proper for counsel for the child and parents
to communicate with witnesses, such as teachers and evaluators
who are employed by the school board, without the presence or
prior approval of the lawyer who represents the school board.

The appropriate and controlling disciplinary rules relative to
your inquiry are DRs 7-l03(A)(l) which, in pertinent part,
prohibits a lawyer from communicating on the subject of the
representation with a party he knows to be represented by a
lawyer in that matter unless he has the prior consent of the
lawyer representing such other party or is authorized by law to
do so; 7-l03(A)(2) which precludes a lawyer from giving advice to
a person who is not represented by a lawyer, other than the
advice to secure counsel, if the interests of such person are or
have a reasonable possibility of being in conflict with the
interests of [the lawyer's] client; and 7-l03(B) which requires
that, in dealing on behalf of a client with a person who is not
represented by counsel, a lawyer shall not state or imply that
the lawyer is disinterested.  Additional guidance is available
through EC 5-l8, the pertinent parts of which exhort that 

     [a] lawyer employed or retained by a corporation or similarentity owes his allegiance to the entity and not to a
     stockholder, director, officer, employee, representative, or
     other person connected with the entity....Occasionally, a
     lawyer for an entity is requested by a stockholder,
     director, officer, employee, representative, or other person
     connected with the entity to represent him in an individual
     capacity; in such case the lawyer may serve the individual
     only if the lawyer is convinced that differing interests are
     not present.  (emphasis added)

The committee has consistently opined that it is not
impermissible for an attorney to directly contact and communicate
with employees of an adverse party provided that the employees
are not members of the corporation's "control group" and are not
able to commit the organization or corporation to specific
courses of action that would lead one to believe the employee is
the corporation's alter ego.  See, e.g., LEOs #347, 530, 795,
801, 905; Upjohn Co. v. U.S., 449 U.S. 383, l0l S.Ct. 677, 66
L.Ed.2d 584 (l98l).   The committee has also found that it is not
improper for an attorney to contact an opposing party's fact or
expert witnesses, although it would not be appropriate under DR
7-l03(A)(2) and (B) for the attorney to offer advice to those
witnesses.  See LEOs #l042, ll58, l235.

With respect to actions involving governmental agencies, the
committee has previously opined that the disciplinary rule
proscribing communications with adverse parties is not applicable
in a case where persons are petitioning a legislative body [LEO
#529]; and that, where an attorney is involved in litigation
against a county board of supervisors, it would not be improper
for the attorney to contact other county employees if they are
fact witnesses not charged with the responsibility of executing
board policy [LEO #777]. Furthermore, the committee has also
opined that, where information is generally available to the
public under the Freedom of Information Act, the status of
litigant or litigant's counsel does not disenfranchise one from
obtaining such information.  See LEO #l504; Frey v. Department of
Health and Human Services, l06 F.R.D. 32 (E.D.N.Y. l985).  

Thus, in the facts you present, the committee believes that it
would not be improper or violative of DR 7-l03(A)(l) for the
lawyer representing the child and parents to directly contact
school board employees who are not in a position to bind the
school board to a course of action.  The committee is of the
opinion that the rule prohibiting an attorney's communication
with adverse parties should be narrowly construed in the context
of litigation with the government in order to permit reasonable
access to witnesses for the purpose of uncovering evidence,
particularly where no formal discovery processes exist.  Opinion
332 (9/88), Ethics Committee of the Kentucky Bar Ass'n, ABA/BNA
Law. Man. on Prof. Conduct 90l:3905.

Committee Opinion 
June 22, 1993