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. Would a government (law enforcement) general counsel have some exemption from the rule dealing with unrepresented persons?

In a surprisingly brief reply, the attorney said only:

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. <end of message>

Shouldn't that be considered legal advice? 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.

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.

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 & Ethics Attorney for the Capitol Police.

I'm not asking if he's right, but if his response brings his own ethics into question?

Legal Advice vs legal information

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. -- https://www.findlaw.com/hirealawyer/do-you-need-a-lawyer/what-is-legal-advice.html

  • 2
    Suppose I owe you some money. You come to me and say "give me my money!". I reply "nah, I do not legally owe you anything". What would that be you think, legal advice?
    – Greendrake
    Jul 30 at 1:58
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    I suspect most people are downvoting because they think the answer is obvious. The guy isn't giving you any advice; he's just telling you why he's not complying with your request. It's an entirely routine communication, and I doubt any disciplinary authority in the country would find it objectionable in any way.
    – bdb484
    Jul 30 at 4:02
  • @bdb484 So the community discourages questions that some members feel have obvious answers? That doesn't jibe with the prohibition on my deleting the question, answers like David's can be valuable to others with questions similar to mine. It distinguishes between legal advice and taking a position, rather than just saying that's obvious... Jul 30 at 4:11
  • I can't speak for "the community." I can say that most users on Law.SE know very little about the law, and that their inexperience often results in them voting down questions or answers because they don't appreciate how uncertain modern legal systems make everything. There just aren't very many people providing useful information here, whether that means answers or up/downvotes. I wouldn't read too much into it.
    – bdb484
    Jul 30 at 4:31
  • @bdb484: I won't take it personally, thanks. I wouldn't even mind the downvote if they put in a comment with constructive criticism or describing their reason. But there's not much point in getting worked up over it. Jul 30 at 4:47

This is not legal advice, It is not even primarily a legal opinion. It is a legal position. 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.

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.

Not only is it not unethical for the lawyer to respond in this way, the agency is, I am fairly sure, required 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.

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.

  • Thanks again David, sounds like a reasonable distinction to me, and I understood it to be a position (stated as a fact). So I asked in reply for even a single precedent supporting his position. Would he be ethically able to answer that? Does he have an obligation to show such legal reasoning?. Jul 30 at 2:02
  • @Burt_Harris I don't see any ethical reason why the lawyer should not answer. It is clear that s/he is not advising you, your interests are if anything opposed to those of his or her client/employer. I doubt that s/he is required to respond, unless you actually file suit. But there are several reasons why s/he might choose to. I suggest being as polite as possible, and trying not to sound like an obsessed nut, I am sure they see a lot of those. Jul 30 at 2:08
  • Thanks, yes. I simply asked him to check his position against a definition of federal common law public records from a 1996 appeal. I'll provide the cite if you are interested. I certainly don't want to get litigious if further civil communications can address the issue. Jul 30 at 4:27

Legal advice? It isn't even advice.

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?

There is no advice here of any sort.

  • The attorney looked at the specifics of information I requested rendered an opinion about the applicability of common law to the request I made. I think that fits the definition of legal advice. Jul 30 at 1:30
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    @Burt_Harris You might think that, but it doesn't. At all.
    – cpast
    Jul 30 at 1:32
  • Are you guys lawers? Jul 30 at 1:39
  • 2
    @Burt_Harris It shouldn't really make any difference to you whether the guys are lawyers. Because even if they are, they are not your lawyers.
    – Greendrake
    Jul 30 at 3:39
  • 1
    @kisspuska lawyers can to talk to people without it being legal advice
    – Dale M
    Jul 30 at 21:03

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