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Ethics Opinions from the Bar Association of San Francisco

INFORMAL OPINION 1973-25

It is improper for an attorney to advise or consent to his client conferring with an opposing party who is represented by counsel regarding settlement of a pending dispute. The first attorney has a duty to dissuade his client from doing so.

QUESTIONS:

(a) If an attorney learns that his client is to meet independently with the opposing party for purposes of discussing the settlement of a pending dispute, is he under an obligation to inform opposing counsel?

(b) Is there any impropriety in a meeting of the parties to a lawsuit, for purposes of discussing settlement, in the absence of counsel if neither attorney knows of it in advance or if both attorneys know of it in advance?

(c) If there is no impropriety in such a meeting, and if an attorney has no obligation to inform opposing counsel of the plans for such a meeting, can an attorney ethically recommend the meeting to his client and prepare his client for it, even though he knows that opposing counsel may be unaware of the proposed meeting?

OPINION:

Rule 12 of the Rules of Professional Conduct of the State Bar of California provides:

Communications with a party in the absence or without consent of counsel. A member of the State Bar shall not communicate with a party represented by counsel upon a subject of controversy, in the absence and without the consent of such counsel. This rule shall not apply to communications with a public officer, board, committee or body.

Former Canon 9 of the Canons of Professional Ethics of the American bar Association provides:

A lawyer should not in any way communicate upon the subject of controversy with a party represented by counsel; much less should he undertake to negotiate or compromise the matter with him, but should deal only with his counsel. It is incumbent upon the lawyer most particularly to avoid everything that may tend to mislead a party not represented by counsel, and he should not undertake to advise him as to the law.

Canon 9 was adopted in 1908 and was effective until 1969. In construing Canon 9, the Committee on Professional Ethics of the American bar Association rendered Opinion 75 on August 27, 1932, and held that an attorney cannot, without the consent of opposing counsel, sanction any attempt by his client to reach a compromise settlement by direct communication with the adverse party. As part of its opinion, the Committee stated:

Even should the client suggest a personal interview for purposes of compromise without consent of the adversary's attorney it would be the duty of his lawyer to endeavor to dissuade him from so doing, as Canon 16 provides "a lawyer should use his best effort to restrain and prevent his clients from doing those things which the lawyer himself ought not to do."

Again, candor and fairness to his brother attorney should restrain the defendant's attorney from giving any such advice or sanction, as Canon 22 states that "The conduct of the lawyer before the Court and with other lawyers should be characterized by candor and fairness."

In a subsequent opinion, the same Committee decided that a lawyer should use every reasonable effort to prevent his client from communicating with the adverse parties without the consent of the latter's lawyer. (Committee on Professional Ethics of the American Bar Association, No. C524).

In 1969, the American Bar Association adopted the new Code of Professional Responsibility . As part thereof, the disciplinary rules of Canon 7 provide:

During the course of his representation of a client a lawyer shall not: (1) Communicate or cause another to communicate on the subject of the representation with a party he knows to be represented by a lawyer in that matter unless he has the prior consent of the lawyer representing such other party or is authorized by law to do so. ( Code of Professional Responsibility , Canon 7, DR 7-104) (Emphasis added).

In view of the foregoing it would appear, in answer to the question posed, that (a) counsel is under an obligation to inform opposing counsel, and that (b) there would be no impropriety if both counsel know of and consent to private negotiations and, of course, none if neither counsel knows of the same.

All opinions of the Committee are subject to the following disclaimer:
Opinions rendered by the Ethics Committee are an uncompensated service of The Bar Association of San Francisco. Opinions are advisory only, and no liability whatsoever is assumed by the Committee or The Bar Association of San Francisco in rendering such opinions, and the opinions are relied upon at the risk of the user thereof. Opinions of the Committee are not binding in any manner upon the State Bar of California, the Board of Governors, any disciplinary committee, The Bar Association of San Francisco, or the individual members of the Ethics Committee.

In using these opinions you should be aware that subsequent judicial opinions and revised rules of professional conduct may have dealt with the areas covered by these ethics opinions.

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