Party Lines

By Peter H. Geraghty
Director, ETHICSearch

You represent a client in a contract matter. Negotiations have been proceeding slowly and you recently learned that your client has been communicating with the opposing party directly in an effort to resolve the situation.

Do you have an obligation to instruct your client to cease communication with the opposing party?

If not, what if any direction can you give to the client about the substance of the communication?

Occasionally, ETHICSearch receives inquiries from lawyers who have questions about party-to-party communications under circumstances where the opposing party is represented.  Questions in this area involve Rule 4.2 Communication With Person Represented by Counsel, and Rule 8.4 Misconduct of the ABA Model Rules of Professional Conduct.  Rule 4.2 states:

In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order.
An excerpt from paragraph 4 of the Comment to Rule 4.2 states as follows:

A lawyer may not make a communication prohibited by this Rule through the acts of another. See Rule 8.4(a). Parties to a matter may communicate directly with each other, and a lawyer is not prohibited from advising a client concerning a communication that the client is legally entitled to make.

Subpart (a) of Rule 8.4 Misconduct states:
It is professional misconduct for a lawyer to:
(a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another;…

ABA Formal Opinion 92-362
In 1992, the ABA Standing Committee on Ethics and Professional Responsibility issued Formal Opinion 92-362 Contact With Opposing Party Regarding Settlement Offer (1992)

            Opinion 92-362 discussed inter alia whether a lawyer could advise his or her client that the client could communicate directly with the opposing party under circumstances where the lawyer believes that opposing counsel had not communicated a settlement offer to the client.  The Committee concluded that under Rules 1.1 Competence , 1.2 Scope of Representation And Allocation of Authority Between Client And Lawyer, 1.4 Communication and 4.2 Communication With Person Represented by Counsel the lawyer could advise the client of his right to communicate with the opposing party, and gave the following analysis of the development of ABA Model Rule 4.2 to support its conclusions:

…In the Committee's view, fulfillment of the duties imposed by these Rules requires that the lawyer for the offeror-party advise that party with respect to the lawyer's belief as to whether the offers are in fact being communicated to the offeree-party. Likewise, the offeror-party's lawyer has a duty to that party to discuss not only the limits on the lawyer's ability to communicate with the offeree-party, but also the freedom of the offeror-party to communicate with the opposing offeree-party.

We find support for this conclusion in the fact that Rule 4.2 omits the phrase "or cause another to communicate," which appeared in DR 7-104(A)(1), and in the fact that the House of Delegates in 1983 rejected an amendment that would have restored it. As reported in The Legislative History of the Model Rules of Professional Conduct (ABA Center for Professional Responsibility, 1987), at 148-49:

An amendment proposed by the New York State Bar Association, which would have added the phrase "or cause another to communicate," was defeated. The opponents objected to a possible interpretation of the amendment that would prevent lawyers from advising principals to speak directly with their counterparts. The Rule was not intended to prohibit such advice. To the extent the amendment would have precluded a lawyer from using an intermediary to carry a message from the lawyer to the opposing party, such conduct was prohibited by Rule 8.4(a) which prohibited a lawyer from violating a Rule "through the acts of another."

While Opinion 92-362 discussed party-to-party communication, it did so in the narrow context of communicating settlement offers.  The opinion did, however, recognize the delicate situation lawyers face when advising a client that he or she can communicate with the opposing party.  The last paragraphs of the Opinion states:

…there is a tension between the lawyer's latitude to advise the offeror-client about the client's right to communicate directly with the offeree and about how that communication can most effectively advance the interests of the offeror, and Model Rule 8.4(a)'s prohibition on a lawyer's doing indirectly what the lawyer may not do directly.

Rule 8.4(a) provides that:

It is professional misconduct for a lawyer to:

(a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another....

The prohibition of this Rule against a lawyer's violating the Rules through the acts of another raises a number of questions about, inter alia, what a lawyer may or may not say to the lawyer's client, sufficiently broad and complex to require separate attention. Leaving for another day any opinion on that broader subject, (emphasis added) the Committee concludes that in the factual setting of this Opinion, where the purpose of the communication is to ascertain whether a settlement offer has been communicated to the other party, Rule 8.4(a) should not be read to preclude the lawyer's fulfilling the lawyer's duty, reasonably expected by the client, fully and fairly to advise the client of the lawyer's best professional judgment as to the exercise of the client's rights in furtherance of the representation.

State Bar Ethics Opinions
There have been state bar opinions issued on this topic.  Some of them address situations similar to that discussed in Formal Opinion 92-362 and agree with that opinion’s conclusions.  See, e.g. Connecticut Formal Opinion 93-10 (Where lawyer fears that settlement offers are not being transmitted to the opposing party, the lawyer can advise the client that he or she can communicate directly with the opposing party),  South Carolina Opinion 93-16 (Lawyer who is having trouble reaching opposing counsel re settlement offer may advise client of his or her right to communicate with the opposing party directly).  See also North Dakota Opinion 96-10 (1996) (Lawyer has no duty to stop client or to withdraw from representation where the client on his or her own initiative is communicating directly with a represented opposing party).  But, compare State Bar of Michigan Opinion RI-171 (1993) in which the Michigan Committee, while recognizing the client’s right to communicate directly with the opposing party rejected Formal Opinion 92-362’s interpretation of the significance of the omission of the phrase "or cause another to communicate," from Rule 4.2 and stated that Rules 4.2 and 8.4 when read together prohibit a lawyer from advising his client that he or she can communicate with the opposing party directly:

The Rules set parameters for the conduct of lawyers, and not clients. The lawyer is responsible for the lawyer's behavior and not that of the client. Admittedly, there is a tension between the competing interests of informing one's client and the knowledge of what the client will do with that information. As noted in CI-920, even if the lawyer knows the client may share the draft settlement document with the opposing party, the lawyer does not violate the Rules if the lawyer does not advise or encourage the client to tender the offer.

A lawyer's telling a client that the lawyer believes a settlement offer has not been conveyed by opposing counsel, advising the client that the lawyer may not contact the opposing party directly, and finally advising the client that the client is free to contact the opposing party directly, as condoned in ABA Op 92-362, is tantamount to an invitation to the client to contact the opposing party.

The Michigan opinion stated further that if the lawyer believes that opposing counsel is not transmitting a settlement offer to his client, he should report him to the appropriate disciplinary authority.

Illinois State Bar opinion 04-02 (2005) reached a conclusion similar to that of the Michigan opinion, although it did so partly because of a significant difference between the ABA and Illinois versions of Rule 4.2.  Opinion 04-02 recognized that parties have an absolute right “to negotiate directly and sign agreements without his or her lawyer’s presence or consent” but concluded  that:

Lawyers, however, may not suggest the client contact the other party.  Nor may they assist the client in contacting the represented party.  Illinois Rule 4.2 unlike the ABA Model Rule forbids lawyers from “caus[ing] another to communicate” with a represented party.”

Other state bar opinions discuss some aspects of the questions that Formal Opinion 92-362 left for another day, i.e., the extent to which a lawyer can counsel a client regarding the substance of a party-to-party communication.  See, e.g. California State Bar Opinion 1993-131:

…When the content of the communication to be had with the opposing party originates with or is directed by the attorney, it is prohibited by rule 2-100. Thus, an attorney is prohibited from drafting documents, correspondence, or other written materials, to be delivered to an opposing party represented by counsel even if they are prepared at the request of the client, are conveyed by the client and appear to be from the client rather than the attorney. An attorney is also prohibited from sending the opposing party materials and simultaneously sending copies to the party's counsel. Providing copies to opposing counsel does not diminish the prohibited nature of the communications with the opposing party.

An attorney is also prohibited from scripting the questions to be asked or statements to be made in the communications or otherwise using the client as a conduit for conveying to the represented opposing party words or thoughts originating with the attorney.

When the content of the communication to be had with the opposing party originates with and is directed by the client, it is permitted by rule 2-100. Thus, an attorney may confer with the client as to the strategy to be pursued in, the goals to be achieved by, and the general nature of the communication the client intends to initiate with the opposing party as long as the communication itself originates with and is directed by the client and not the attorney.

Rule 2-100 specifically contemplates that communication between an attorney and an opposing party represented by counsel is appropriate with the consent of the opposing counsel. Therefore, prudent attorneys concerned about anticipated communication between parties on disputed issues should attempt to reach an understanding with opposing counsel as to the standards that will apply to counsel's involvement in such communication.

See Also The Association of the Bar of the City of New York Opinion 2002-3 (2002).  This opinion considered the question of the extent to which a lawyer can advise his client about the substance of party to party communications under circumstances where the client conceives the idea of communicating directly with the adverse party.  This opinion withdrew an earlier New York State Bar Opinion 1991-2 (1991) that had concluded that:

…(1) A lawyer may not encourage or "cause" a client to communicate with a represented party, without the consent of opposing counsel or legal authorization; and (2) even in situations when the client independently decides to contact a represented party, the lawyer should advise the client that, without opposing counsel's consent, the lawyer cannot assist or advise the client in these communications.

In 1999, DR 7-104 of the New York Code of Professional Responsibility and the accompanying Ethical Considerations were amended.  Subpart (B) was added to the Rule that reads as follows:

Notwithstanding the prohibitions of DR7-104[1200.35](A), and unless prohibited by law, a lawyer may cause a client to communicate with a represented party, if that party is legally competent, and counsel the client with respect to those communications, provided the lawyer gives reasonable advance notice to the represented party's counsel that such communications will be taking place. DR 7-104(B).

Ethical Consideration 7-18 was also amended to read as follows:

EC 7-18 further provides that a lawyer may advise his or her client to communicate directly with a represented person, "including by drafting papers for the client to present to the represented person," so long as the attorney gives "reasonable advance notice" that such communications will be taking place. EC 7-18 defines "reasonable advance notice" as "notice provided sufficiently in advance of the direct client-to-client communications, and of sufficient content, so that the represented person's lawyer has an opportunity to advise his or her own client with respect to the client-to-client communications before they take place."

The Opinion also cited to the Restatement (Third) of the Law Governing Lawyers § 99C, comment (k) (2000) that states as follows:

"… the anti-contact rule does not prohibit a lawyer from advising the lawyer's own client concerning the client's communication with a represented nonclient . . . Prohibiting such advice would unduly restrict the client's autonomy, the client's interest in obtaining important legal advice, and the client's ability to communicate fully with the lawyer."

Interpreting DR 7-104 as amended, the Committee concluded:

This Committee concludes that where the client conceives the idea to communicate with a represented party, DR 7-104 does not preclude the lawyer from advising the client concerning the substance of the communication. The lawyer may freely advise the client so long as the lawyer does not assist the client inappropriately to seek confidential information or invite the nonclient to take action without the advice of counsel or otherwise to overreach the nonclient.

Case Law
There is case law on point stating that lawyers may not orchestrate the substance of a client’s communication with a represented party.   See, the annotations following Rule 4.2 from the 2003 edition of the ABA Annotated Model Rules of Professional Conduct (Note: the new 2007 edition of the ABA Annotated Model Rules will be available later this summer.) that states as follows:

... OPPOSING PARTIES MAY SPEAK TO EACH OTHER

A party to a matter is free to speak directly to other parties and witnesses, even when those parties and witnesses are represented by counsel. Rule 4.2, Cmt. [4]. See, e.g., Fidelity Nat'l Title Ins. Co. of New York v. Intercounty Nat'l Title Ins. Co., 2002 WL 1433717 (N.D. Ill., July 2, 2002) (no ethics rule prevents officer of one company from directly contacting officer of opposing party); ABA Formal Ethics Op. 92-362 (1992) (lawyer who has serious doubts whether settlement offer he made to opponent's lawyer has been communicated to offeree may not ask offeree, but may tell client that he himself is free to ask).

The lawyer may not, however "mastermind" the communication between the lawyer's client and a represented person. See Trumbull County Bar Ass'n v. Makridis, 671 N.E.2d 31 (Ohio 1996) (personal injury plaintiff's lawyer suggested her client call defendant about client's anticipated trial testimony just before trial; during call, plaintiff handed telephone to lawyer, who continued the conversation but then withdrew as plaintiff's counsel; public reprimand); New York City Ethics Op. 2002-3 (2002) (if client "conceives of the idea" of communicating with a represented party, lawyer may advise client about it but must avoid helping client either elicit confidential information or encourage other party to proceed without his or her counsel); cf. Ex parte Lammon, 688 So. 2d 836 (Ala. Civ. App. 1996) (plaintiff suing his mother for injuries suffered on her property had his lawyer accompany him on visit to the mother in nursing home though they knew she was represented; lawyer disqualified). See generally Zoghby, The Prohibition of Communication with Adverse Parties in Civil Negotiations: Protecting Clients or Preventing Solutions?, 14 Geo. J. Legal Ethics 1165 (2001); Kleiman and Hofstein, Ethical Concerns Relating to Communications with Represented Parties, 33 Fam. L. Q. 349 (1999).

See  also Holdren v. General Motors Corp, 13 F. Supp. 2d 1192 (1998) (lawyer who advised client about obtaining affidavits from other employees in employment suit and showing client how to draft affidavit “stepped over [the] line”), In Re Pyle, 91 P. 3d 1222 (Kan 2004) (Lawyer who prepared affidavit for opposing party and encouraged his client to deliver it to him knew that the client would obtain opposing party’s signature without opposing party’s consent.)

Conclusion
Ethics opinions and case law in this area agree that parties have the right to communicate with each other directly, and that lawyers may not “mastermind” the substance of the party to party communication.  There is however some disagreement as to whether lawyers can inform their clients of the right to do so.  As is typical of these types of questions, it is crucial to check the ethics opinions, rules of professional conduct and case law that have been adopted or issued in the applicable jurisdiction.

Back to top

Back to home