Legal Ethics: Government lawyers giving legal advice &amp; ABA rule 4.3?
<p>I submitted a request for information to a government agency and got back an answer from a lawyer that seems to constitute legal advice prohibited under DC bar rule 4.3.  <strong>Would a government (law enforcement) general counsel have some exemption from the rule dealing with unrepresented persons?</strong></p>
<p>In a surprisingly brief reply, the attorney said only:</p>
<blockquote>
<p>The United States Capitol Police respectfully declines to provide the information requested in your July 26, 2021 email below. The information and communications requested are not public records subject to the public right of access under federal common law.
&lt;end of message&gt;</p>
</blockquote>
<p>Shouldn't that be considered <strong>legal advice</strong>?   I would think advising his client would be fine, but not a public member, particularly as his opinion puts my interests in conflict with the organizations.</p>
<p>Background: In a single e-mail, I requested six specific categories of records from the Capitol Police.   Furthermore, I requested them under the common law Right to Public Records because the same lawyer has (in response to other requestors) refused the request on the basis that FOIA does not apply.</p>
<p>The guy didn't even identify his role in the organization. As he didn't, I checked him out on LinkedIn, where he describes himself as Senior Counsel &amp; <em>Ethics Attorney</em> for the Capitol Police.</p>
<p>I'm not asking if he's right, but if his response brings his own ethics into question?</p>
<p><strong>Legal Advice vs legal information</strong></p>
<blockquote>
<p>Unlike legal information, legal advice refers to the written or oral counsel about a legal matter that would affect the rights and responsibilities of the person receiving the advice. In addition, actual legal advice requires careful analysis of the law as it applies to a person's specific situation - as opposed to speculation based on generic facts.  -- <a href="https://www.findlaw.com/hirealawyer/do-you-need-a-lawyer/what-is-legal-advice.html" rel="nofollow noreferrer">https://www.findlaw.com/hirealawyer/do-you-need-a-lawyer/what-is-legal-advice.html</a></p>
</blockquote>

<p>This is not legal advice, It is not even primarily a legal opinion. It is a <strong>legal position</strong>. The lawyer, acting on behalf of the agency from which you requested information, is giving the reasons why that agency is declining your request. The lawyer is presumably either an employee of the agency, or has the agency as a client. In any case, this is notice of the position that the agency would be likely to adopt if you took further legal action, such as a suit to compel disclosure.</p>
<p>Lawyers provide such position statements ion behalf of clients or employers all the time. Such statements indicate why certain action is taken, what basis the client or employer has for taking or not taking certain action, and often indicate the nature of the defenses or theories that will be used should a lawsuit follow, although the client or employer is free to change the theory at the pleading stage.</p>
<p>Not only is it not unethical for the lawyer to respond in this way, the agency is, I am fairly sure, <strong>required</strong> by the law to provide a valid reason when a request is declined. That is what they have done, provide a reason that they claim is valid, with some legal reasoning about why it is valid.</p>
<p>Note that I express no view on whether the reason given is in fact valid, or would be sustained in a suit. That would be a different question.</p>

<h2>Legal advice? It isn't even advice.</h2>
<p>What has this person suggested that you do? Have they advised you of what your legal rights and remedies are? Have they suggested you lose weight or stop smoking?</p>
<p><strong>There is no advice here of any sort.</strong></p>

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