Attorney shouldn’t communicate with opposing party
The various ethical rules previously discussed were designed to assure the correct functioning of the justice system and, therefore, they dictate an attorney’s allowed conduct. An attorney’s interactions with the opposing counsel, the court, jurors, and even third persons are constrained by those rules. Those same guidelines also prescribe the proper way for an attorney to communicate with an unrepresented party as well as a party represented by other counsel. The purpose of these rules is to protect a person who chose to be represented by counsel from unfair interactions with other attorneys who may attempt to interfere with the attorney-client relationship or attempt to illicit an unintentional disclosure of information.
In representing a client, an attorney should not directly communicate about the case with a person the attorney knows is represented by another attorney in the matter unless the attorney has the consent of the other attorney or is authorized to do so by law or court order.
This prohibition applies even when the represented person initiates the communication or agrees to it. So, for example, if an attorney receives a phone call from the represented opposing party or is approached by such party in court, the attorney should not communicate with that party or should end the communication immediately when learning of such representation. The attorney must have actual knowledge of the representation; however, such knowledge can be inferred from circumstances. If the attorney sees the opposing party with an attorney in court, the attorney should not pretend to not know about the representation if approached by the opposing party alone.
This prohibition does not apply to communication unrelated to the representation in the case at hand. So, an attorney may consult with a represented party seeking advice on a matter for which that person is not represented. For example, a client may have already retained a business attorney to handle a contract dispute, but a family law attorney may still consult with that client regarding a divorce.
Noteworthy, the parties to the case may communicate directly with each other and while an attorney may not use others to communicate with a represented party indirectly, that attorney is allowed to advise a client regarding communication that is permissible to the client.
If an attorney is uncertain whether communication with a represented party is allowed or if exceptional circumstances require communication with such party, then that attorney can seek a court order. Rarely, such communication with a represented party may be authorized by law.
The rule addressing the attorney’s interaction with an unrepresented party serves a similar ethical purpose. When communicating on behalf of a client with a party that is not represented by counsel, an attorney cannot state or imply that an attorney is disinterested. Further, if that attorney knows that the unrepresented party misunderstood the attorney’s role in the matter, the attorney shall correct such misunderstanding. This is because an unpresented party may lack the legal experience necessary to properly assess the attorney’s role in the case and may conduct the communication in a manner unintentionally determinantal to their position. For that reason, in adversarial situations, the attorney is prohibited from giving any advice other than to retain counsel.
An attorney is still allowed to negotiate the terms of an agreement or to settle a matter with an unrepresented party. Further, the attorney can draft a document for the unrepresented party’s signature and even explain their own view of the meaning of the document or the attorney’s understanding of the terms of the agreement as long as no legal advice is provided to the unrepresented opposing party.
Natalia Vander Laan is a Minden attorney practicing estate planning, family law, and workers’ compensation.