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 93-16
Plaintiff's attorney filed suit, and the defendant's attorney filed an Answer and a Counterclaim. Settlement negotiations are ongoing between the two lawyers, but the defendant's lawyer claims to be very busy and it is difficult to contact him or get responses from him with regard to settlement overtures.
Questions:
1. Can the plaintiff's attorney copy the defendant himself on any settlement proposals sent to the defendant's attorney if he suspects such proposals have not been relayed to the defendant?
2.If the plaintiff's attorney suspects that the defendant's attorney has not conveyed the offers to the defendant, may the plaintiff personally contact the defendant, either by in person, telephone, or mail with regard to these settlement offers?
Summary:
1. A lawyer may not communicate with another who is represented by counsel. This includes both in person communication and communication by mail, unless he has the consent of the other party's attorney or unless it is authorized by law. Rule 4.2; A.B.A. Formal Opinion No. 92-362.
2. Rule 4.2 unlike DR 7-104(A)(1) does not prohibit the lawyer from advising his client that the client may contact the other party directly as to whether the settlement offer has been conveyed. However, particular attention should be paid to Rule 8.4(a) which states that a lawyer may not do indirectly what the lawyer may not do directly. A.B.A. Formal Opinion No. 92-362.
Opinion:
Rule 4.1 states that "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." In this given scenario there is no South Carolina case law that would allow for such communication. Rule 4.2 proscribes all communication with a represented party; thus, precluding copying the represented party on written letters directed to that party's attorney. The lawyer may contact the represented party only if that party's attorney so consents. A.B.A. Formal Opinion No. 92-362.
Rule 4.2, although similar to former DR 7-104(A)(1), omits the phrase or "cause another to communicate...". This would tend to indicate that a lawyer is free to advise his client that there is no ethical prohibition against the client contacting the other party. In fact, Rule 1.4 states that he should keep his client informed and should explain a matter to the extent necessary to permit the client to take informed decisions regarding the representation. A.B.A. Formal Opinion No. 92-362. However, Rule 8.4(a) states that a lawyer may not violate the rules of professional conduct through the acts of another.
In this given situation, Rule 8.4(a) should not be read to preclude the lawyer from fulfilling his duty as reasonably expected by the client, to fully and fairly advise the client of the client's rights in furtherance of the representation. A.B.A. Formal Opinion No. 92-362.