If a lawyer suspects opposing counsel never told their client about a settlement offer, can the lawyer contact the opposing party directly, or advise their own client to do so?

Plain-English summary

The committee took up a plaintiff's lawyer who made a settlement offer to opposing counsel, heard nothing for two months with trial two weeks away, and suspected the defendant had never been told of the offer. It asked whether the plaintiff's lawyer could contact the defendant directly to convey the offer, and what the lawyer could say to the lawyer's own client about communicating with the defendant.

On the first question, the committee held the answer is governed by Rule 4.2, which bars a lawyer from communicating "about the subject of the representation" with a party the lawyer knows to be represented, absent the other lawyer's consent or authorization by law. Because conveying the settlement offer would be such a communication, the rule prohibits it. The committee stressed that "[t]he Rule contains no exception for instances where offering counsel believes, or indeed even knows, that the offeree's counsel has not communicated a settlement offer," and that this absence is not an oversight; the same result held under the predecessor DR 7-104(A)(1) and the Canons. It pointed to its earlier Informal Opinions 985 and 1348 for the permissible alternatives, such as a statutory offer of judgment served on the party with a contemporaneous copy to counsel, or a communication to the court.

On the second question, the committee held Rule 4.2 governs only the lawyer's own conduct, not the client's, and the Comment recognizes that "parties to a matter may communicate directly with each other." Reading Rules 1.1, 1.2(a), and 1.4(b) together, the committee concluded that the duty to counsel the client requires the lawyer to advise the offeror-client of the lawyer's belief about whether offers are reaching the other side, and to discuss both the limits on the lawyer's own ability to communicate and the client's freedom to communicate with the opposing party. The opinion acknowledged a tension with Rule 8.4(a) (doing indirectly what the lawyer may not do directly), noting the drafters rejected an amendment that would have barred lawyers from advising principals to speak with their counterparts, and left the broader Rule 8.4(a) questions "for another day," holding only that advising the client in this settlement-status setting is permissible.

Currency note

This opinion was issued in 1992, before the American Bar Association's adoption of the 2002 (Ethics 2000) revisions to the Model Rules of Professional Conduct, which changed Rule 4.2's terminology (from "party" to "person") and refined the related rules. Subsequent rule amendments and later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Can a lawyer contact a represented opponent to check whether their lawyer passed along a settlement offer?

A: No. The opinion concluded Rule 4.2 prohibits the lawyer from contacting the represented party about the subject of the representation, even to confirm an offer was relayed, absent the other lawyer's consent or legal authorization.

Q: Does it matter that the lawyer is sure the offer was never communicated?

A: No. The committee held Rule 4.2 contains no exception for that situation, and the omission was deliberate, not an oversight.

Q: Can the lawyer tell their own client to contact the other party directly?

A: Yes. The opinion held that Rule 4.2 governs only the lawyer's conduct, and that the duty to counsel the client (Rules 1.1, 1.2, 1.4) permits advising the client about the client's freedom to communicate directly and how best to do so.

Q: What alternatives did the opinion suggest for getting the offer to the other side?

A: It pointed to a statutory offer of judgment served on the party with a copy to counsel (where law allows), or a communication to the court, as described in Informal Opinions 985 and 1348.

Background and rules framework

The opinion interpreted Rule 4.2 (communication with a represented person), holding it bars the lawyer's direct contact even when the lawyer doubts an offer was relayed, while leaving the client free to communicate. It read Rules 1.1 (competence), 1.2(a) (scope and client's settlement decisions), and 1.4(b) (communication) as requiring the lawyer to advise the client about the client's communication options, and noted the limit of Rule 8.4(a) (violating the rules through the acts of another). Because the ABA interprets the Model Rules directly, there is no state-rule analogue.

Citations and references

Rules of Professional Conduct:

• MR 4.2 (communication with person represented by counsel)
• MR 1.2 (scope of representation; client's settlement decisions)
• MR 1.4 (communication; informing the client of settlement offers)
• MR 8.4(a) (violating the rules through the acts of another)

Other opinions cited:

• ABA Informal Op. 985 (1967): a statutory offer of judgment may be served directly on an adverse party with a contemporaneous copy to counsel, without improper motive
• ABA Informal Op. 1348 (1975): sending the opposing party a copy of a settlement letter to their counsel is impermissible under DR 7-104(A)(1)

See also

• ABA Formal Op. 91-359: Contact with a former employee of an adverse corporate party
• ABA Formal Op. 06-443: Contact with an organization's inside counsel
• ABA Formal Op. 07-445: Contact with putative members of a class before certification
• RI EAP Op. 2002-01: Duty to a Former Client After Termination, and Rule 4.2 Contact Restrictions

Source

• Landing page: ABA Formal Ethics Opinions index
• Original PDF: 92-362.pdf