Opinion 233
Question Presented
"A" is injured in an accident involving a city-owned vehicle. "A" retains counsel and files a suit against the city. During settlement negotiations the city attorney recommends an amount to "A's" counsel. In an effort to obtain a higher settlement, "A's" counsel appeals to the City Council or City Manager in his capacity as legal representative of "A."
"B" breaches contract which he has with the city. Following unsuccessful negotiations between the city attorney and "B's" counsel the city institutes suit and recovers judgment. After extensive but futile efforts to collect the payment the city attorney is asked by "B's" counsel to accept a lesser sum in full settlement of the judgment. The city attorney refuses to accept, and "B's" counsel appeals directly to the City Council or the City Manager, requesting they accept the lesser amount as full settlement.
Has either "A's" or "B's" counsel violated the Canons of Ethics in attempting to negotiate or compromise the matter with the City Council or City Manager rather than dealing with the City's counsel? This inquiry is not meant to question the propriety of a citizen appearing before the City Council, or the City Manager as its chief executive officer, in his capacity as a private citizen appearing before his governing body. Instead, it involves the propriety of an attorney appearing as legal representative for another person.
18 Baylor L. Rev. 313 (1966)
NEGOTIATIONS WITH OPPOSITE PARTY - DIRECT CONTACT WITH CITY COUNCIL OR CITY MANAGER
The committee divided equally on the question whether it violates Canon 9 for an attorney to negotiate directly with the City Council or City Manager rather than the attorney representing the city in the particular controversy.
Canon 9.
The committee is equally divided as to whether the conduct of counsel for "A" and "B" violates Canon 9. (4-4.)
Those members concluding that such conduct violate Canon 9 equate the municipal government to a corporation. The city itself is the actual "other party" of record in the cases. Although the city is represented by the city attorney as legal counsel, the City Council and City Manager also only represent the city. However, a city can act only through its officers, like a corporation acts through its directors. Direct contact with directors over the head of an attorney would violate Canon 9. Therefore, these members conclude that counsel must negotiate only with the city's counsel.
The other members conclude that Canon 9 is not entirely mandatory in its language and does not apply to appearance before the city officials. To rule that the attorney cannot appear before the City Council or City Manager would, in effect, deny the right of a citizen to effectively appeal to the public officials who represent his interests as well as those of other citizens of the community. In this case there is an important public policy in favor of free access to public officials by citizens, which policy distinguishes this case from the ordinary cases where there is no legitimate reason why an attorney should communicate directly with agents of an adverse party who is represented by legal counsel. These members therefore conclude that any citizen has the right to have his attorney appear before appropriate city officials to urge any contentions he may wish to make, and the attorney may ethically do so. (4-4. )
Bluebook Citation
Tex. Comm. On Professional Ethics, Op. 233 (1959)