16.03.01. Client-to-Client Contact

The rule also does not prohibit clients from communicating with the opposing party.[1]  The question that arises is how much a lawyer can be involved in either recommending/directing the communication between their client and the opposing client.

Lawyer represents the husband in a divorce action.  The wife is also represented by counsel.  To this point negotiations between the lawyers has been at an impasse.  Lawyer reasonably believes that if the husband and wife were to discuss the matters without lawyers present an agreement could be reached.  The lawyer would like to advise his client to set up a meeting with wife and also to recommend certain items to discuss and strategies for reaching an agreement.  Would it be ethical for the lawyer to do so? [ABA Formal Op. 11-461 (Aug. 4, 2011)]   

No.  ABA Formal Ethics Opinion 11-461 addresses this issue.  It is clear that the lawyer could not communicate with a represented person – that would be a violation of Rule 4.2 – therefore does the lawyer violate Rule 4.2 through the acts of another (a violation of Rule 8.4(a)) by recommending that the client talk to a represented party?  The ethics opinion concludes that it is not unethical for a lawyer to encourage a client to talk to a represented opponent, and the lawyer can give guidance on what to discuss:  “The advice could include, for example, the subjects or topics to be addressed, issues to be raised and strategies to be used.”[2]   A lawyer can also draft taling points or a proposed settlement that the client can take with them.  There is a line, however, on what a lawyer can advise a client.  The limits go to situations where the lawyer is seeking to overreach and violate the purpose of Rule 4.2:  “Prime examples of overreaching include assisting the client in securing from the represented person an enforceable obligation, disclosure of confidential information, or admissions against interest without the opportunity to seek the advice of counsel.”[3]  The opinion says that, to prevent overreaching, the lawyer should tell her client to encourage the other party to consult with counsel before agreeing to binding obligations, making admissions or disclosing confidential information.  Furthermore, if the lawyer has prepared a proposed agreement for the opponent to agree to – it should have “conspicuous language on the signature page that warns the other party to consult with his lawyer before signing the agreement.”[4]

[1] ABA Rule 4.2, Comment [4].

[2] ABA Formal Ethics Op. 11-461 (Aug. 4. 2011).

[3] ABA Formal Ethics Op. 11-461 (Aug. 4. 2011).

[4] ABA Formal Ethics Op. 11-461 (Aug. 4. 2011).