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Professionalism and Ethics in Practicing Administrative Law

Miles C. Cortez, Avi S. Rocklin, Federal and Indian Oil & Gas Royalty Valuation and Management III (2000)

In balancing the competing concerns between the government's right to be protected from contact by opposing counsel and a person's right to petition the government, the judiciary and bar associations have developed balancing tests to allow ex parte contact in limited circumstances. No “bright line” standards exist to guide attorneys and the balancing tests differ, however slightly, in each jurisdiction. Attorneys are advised to familiarize themselves with the scope of Rule 4.2 in the jurisdiction in which they are practicing. As a general rule, when contacting an agency on behalf of a client, an attorney should disclose his or her identity to the government employee, disclose the purpose of the contact, and inquire as to whether the employee is represented by counsel regarding the subject matter of the communication. If the propriety of the communication is in doubt, the attorney should contact counsel for the administrative agency and request such counsel's consent prior to the communication. An attorney is always permitted to contact the agency upon the consent of the government's counsel.