UPON THE REQUEST OF A MEMBER OF THE SOUTH CAROLINA BAR, THE ETHICS ADVISORY COMMITTEE HAS RENDERED THIS OPINION ON THE ETHICAL PROPRIETY OF THE INQUIRER’S CONTEMPLATED CONDUCT. THIS COMMITTEE HAS NO DISCIPLINARY AUTHORITY. LAWYER DISCIPLINE IS ADMINISTERED SOLELY BY THE SOUTH CAROLINA SUPREME COURT THROUGH ITS COMMISSION ON LAWYER CONDUCT.
Ethics Advisory Opinion 90-17
Parties A and B are each represented by separate counsel in a matter in which their interests are adverse. Party A wishes to confer with Party B regarding the matter, without notifying the lawyer for Party B.
Question:
May a lawyer advise a client that it is permissible for the client to speak directly with another adverse party without seeking the consent of the lawyer for the adverse party? Is the result different under the Rules of Professional Conduct than under the former Code of Professional Responsibility?
Summary:
A client may communicate directly with another represented party without the consent of that party's lawyer, at least so long as the client is not being used simply to circumvent prohibitions on direct contact by the lawyer with an adverse party.
Neither DR 7-104 of the Code of Professional Responsibility nor Rule 4.2 of the Rules of Professional Conduct prohibits direct communications between the parties. Such communications may, in fact, facilitate resolution of the dispute between the parties. However, a lawyer should not use the client merely as an intermediary for communications between the lawyer and the opposing party without the consent of the opposing party's lawyer.
Opinion:
Rule 4.2 of the South Carolina Rules of Professional Conduct provides that "In representing a client, a lawyer shall not communicate about the subject of the representation with a party 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 by law to do so." Rule 5.3(c) further provides that a lawyer is responsible in many circumstances for the conduct of any non-lawyer employed, retained by or associated with the lawyer, if that conduct "would be a violation of the rules of professional conduct if engaged in by a lawyer." Accordingly, any communication by a lawyer or an agent or employee of the lawyer, such as an investigator, with a represented party about the representation without the consent of that party's lawyer or other proper authorization is improper. See ABA Inf. Op. No. 663 (No Date). These rules, however, do not prohibit direct communications between the parties themselves. The Comment to Rule 4.2 states clearly that "parties to a matter may communicate directly with each other." Thus, a lawyer may properly counsel a client that it is permissible to speak directly with an opposing party even though that party is represented by counsel. The lawyer, however, should not attempt to use the client as an agent to circumvent the restrictions on direct contact by the lawyer. See S.C. Rule of Prof. Conduct 8.4(a) (a lawyer may not attempt to violate the rules through the acts of another person); see also State Bar of Tennessee Op. No. 85-F-89 (a lawyer may not circumvent the prohibition of direct contact by listening to client's conversation with adverse party on a speaker phone).
This interpretation is consistent with ABA Formal Op. No. 84-350 (1984), which withdrew ABA Formal Op. No. 75 (1932). Formal Op. No. 75, adopted under the original Canons of Professional Ethics, had held that a lawyer could not sanction any attempt by a client to negotiate directly with an adverse party. However, Formal Op. No. 84-350, adopted after approval of the Model Rules of Professional Conduct, formally withdrew that earlier advice as being inconsistent with both the Model Rules and the Model Code of Professional Responsibility. Other advisory opinions rendered under the Code of Professional Responsibility reach similar conclusions. See State Bar of Michigan Inf. Op. No. CI-920 (1985) (a lawyer should encourage parties in a divorce action to resolve disputes even without the involvement of lawyers); Bar Association of San Francisco Inf. Op. 1985-1 (1985) (while a lawyer may not use a client as an indirect means of communicating with the adverse party, lawyer should not discourage client from attempting to settle matter directly with party).