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Ethics Opinions from the Bar Association of San Francisc

INFORMAL OPINION 1985-1
It is proper for an attorney to allow or encourage his or her client to attempt to resolve a dispute by communicating directly with an opposing party, so long as the client is not directly or indirectly acting as an agent of the attorney. Any implication to the contrary in informal opinion 1973-25 is disapproved.

QUESTION
Should an attorney representing a client in a matter discourage the client from negotiating or settling directly with the opposing party even though that party is represented by counsel?

OPINION
No.

DISCUSSION
Rule 7-103 of the State Bar Rules of Professional Conduct proscribes a member of the State Bar from communicating directly or indirectly with a party who the member knows to be represented by other counsel upon a subject of controversy without the express consent of such counsel. This rule is derived from former Rule 12 and the American Bar Association Model Code of Professional Responsibility DR7-104. The purpose of the rule is to protect the adverse client from direct or indirect communication from the adverse attorney when he or she is represented by counsel. Thus, it would be inappropriate in this committee's opinion for the lawyer to use the client as an indirect means of communicating with the adverse party. This does not, however, proscribe the clients themselves from attempting to negotiate a resolution on the controversy between themselves.

The American Bar Association Model Rules of Professional Conduct, Rule 4-2, Communication With Person Represented by Counsel, proscribes a lawyer from communicating about the subject matter of his representation with a party the lawyer knows to be represented by another lawyer unless the lawyer has the consent of the other lawyer or is authorized by law to do so. In the comment to this rule, the point is made that there is no proscription between the parties themselves communicating directly with each other about the matter in dispute even though they may be represented by counsel. In addition, a lawyer having independent justification for communicating with the other party, is permitted to do so (that is, a lawyer can communicate with the other party on matters that are not related to the --subject matter in dispute).

To the extent that this Committee's Informal Opinion 1973-25 is inconsistent with the above, it is disapproved.

 

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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