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.
(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?
Rule 12 of the Rules of Professional Conduct of the State Bar of California provides:
Former Canon 9 of the Canons of Professional Ethics of the American bar Association provides:
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:
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:
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:
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.