Can a lawyer send a contractual notice (like a notice of default) directly to a represented opposing party?

Plain-English summary

The Committee was asked whether an attorney may send a "notice" contemplated by a contract directly to a contracting party the attorney knows is represented by counsel. On the facts presented, Attorney A sent a notice of default required by the contract directly to a represented party (copying the party's counsel at the same time), and opposing counsel accused Attorney A of violating Alaska Rule of Professional Conduct 4.2.

The opinion concludes there is no violation. Rule 4.2 bars a lawyer from communicating "about the subject of the representation" with a represented person absent the other lawyer's consent or legal authorization. The opinion reasons that a notice required by the parties' own contract is independently justified, so long as it does no more than announce the position, intention, or prospective behavior the contract contemplates, it is not a "communication" within the meaning of Rule 4.2. If the notice strays beyond the contract's requirements into arguments or inquiries, it can become a prohibited communication.

The opinion adds that, although not required by the Rules, common professional courtesy suggests that, except in unusual circumstances, a copy of the notice should be sent to opposing counsel at the same time it goes to the party. It frames this reading as consistent with Rule 4.2's purpose while preserving the policy of enforcing contracts as written, and notes the Committee found the Indiana Legal Ethics Committee's analysis persuasive.

In practice

Under this opinion, as the Alaska rule stood at the time, an attorney may serve a contractually required notice directly on a represented party when the contract contemplates that notice, provided the notice is confined to its contractual purpose and adds no argument or inquiry. The opinion treats a notice that goes beyond the contract's requirements as potentially crossing into a prohibited Rule 4.2 communication, and it identifies simultaneously copying opposing counsel as a matter of professional courtesy rather than a rule requirement.

Common questions

Q: Does sending a notice of default to a represented party violate Rule 4.2?

A: Not if the notice is contemplated by the contract and limited to its contractual purpose. The opinion concludes such a notice is independently justified and is not a prohibited "communication" under Rule 4.2.

Q: What turns a permissible notice into a Rule 4.2 violation?

A: Going beyond what the contract requires. The opinion states that if the notice ventures into arguments or inquiries not needed to fulfill its purpose, it may become a communication subject to Rule 4.2's prohibition.

Q: Does the lawyer have to copy opposing counsel?

A: No. The opinion says copying opposing counsel is not required by the Rules, but common professional courtesy suggests sending a copy simultaneously except in unusual circumstances.

Background and rules framework

The opinion interprets Alaska Rule of Professional Conduct 4.2 (communication with a person represented by counsel), the analog of Model Rule 4.2. It relies on the rule's commentary, which excludes communications "concerning matters outside the representation" and recognizes that a lawyer with independent justification or legal authorization may communicate with a represented person.

Citations and references

Rules of Professional Conduct:

• Alaska RPC 4.2 (communication with represented persons) and its commentary

Other authorities cited:

• Indiana State Bar Ass'n, Legal Ethics Committee Op. 2003-01 (2003)
• Restatement (Third) of the Law Governing Lawyers § 99 cmt. g

See also

• ABA Formal Op. 95-396: Communications With Represented Persons
• ABA Formal Op. 06-443: Contact With Inside Counsel of an Organization

Source

• Landing page: https://alaskabar.org/ethics-discipline/ethics-opinions/adopted-ethics-opinions-chronological/
• Original PDF: https://alaskabar.org/wp-content/uploads/2018-2.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

ALASKA BAR ASSOCIATION
ETHICS OPINION NO. 2018-2
DIRECT COMMUNICATIONS WITH REPRESENTED PARTY
WHEN SPECIFIC NOTICE IS REQUIRED TO BE SERVED
ON THE PARTY
ISSUE PRESENTED
May an attorney send a “notice” contemplated by a contract directly
to one of the contracting parties when the attorney has reason to believe
that the party to whom the notice is sent is represented by legal counsel?
SHORT ANSWER
The attorney for a party to a contract may initiate notice to another
party to that contract even if the other party is represented by counsel so
long as the notice is contemplated by the pre-existing agreement of the
parties. Such a notice must not include arguments or inquiries and must
be strictly limited to the purposes the notice provisions of the agreement
were intended to fulfill. Though not required by the Rules of Professional
Conduct, common professional courtesy suggests that, except in unusual
circumstances, a copy of the notice should be sent to opposing counsel
simultaneously with the sending of the notice to the designated nonclient
party.
STATEMENT OF FACTS
In the situation presented to the Committee, Attorney A sent a notice
of default with respect to a contract directly to a represented party. The
contract at issue specifically required written notice of default. The
contract was not specific as to the appropriate entity to receive such notice
(i.e., the contract did not specify whether the notice should go to the party
or to counsel for the party). Attorney B, counsel for the party, was copied
contemporaneously with the notice of default.
Attorney B accused Attorney A of violating Alaska Rule of
Professional Conduct 4.2 by sending the notice of default directly to a
represented party.

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ANALYSIS
Alaska Professional Conduct Rule 4.2 states in full:
In representing a client, a lawyer shall not communicate about
the subject of the representation with a party or person 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 to do so by law or a court order.
The commentary to this rule states that it contributes to the proper
functioning of the legal system by protecting a person who has chosen to
be represented by a lawyer in a matter against possible overreaching by
other lawyers who are participating in the matter, interference by those
lawyers with the client-lawyer relationship, and the uncounseled
disclosure of the person’s confidences and secrets.1
Commentary to Rule 4.2 also makes clear that the rule does not
prohibit communication “concerning matters outside the representation.”2
In the context of discussing this issue, the commentary further states that
“a lawyer having independent justification or legal authorization for
communicating with a represented person is permitted to do so.” 3 The
question presented thus appears to be whether the written notice of
default is an independently justified or legally authorized communication.
If it meets this standard there is no violation of Rule 4.2.
A notice from one party to a contract to another party to the same
contract, especially if contemplated by the very language of the contract,
seems independently justified. So long as the notice does no more than
announce the position, intention or prospective behavior of the party, as
contemplated by a preexisting contract, such a notice is not a
“communication” within the meaning of Rule 4.2. If the notice goes beyond
the requirements of the contract pursuant to which it is given, and
ventures into arguments or inquiries not required to fulfill its fundamental
purpose the notice may well become a “communication” subject to the
prohibitions of Rule 4.2.

Alaska Professional Conduct Rule 4.2, Commentary Para. 1 (as
adopted in 2009).
2
See Commentary Para. 4.
3
Id.
1

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The Committee believes that this interpretation supports the
purposes of Rule 4.2 without detracting from the policy of enforcing
contracts as they are written. By limiting the notice, the sending attorney
is unlikely to take advantage of an opposing party, or to interfere with an
opposing party’s relationship with counsel. Care should be taken in the
drafting of the notice and in abiding by the precise terms of the contract
to ensure that the notice does not venture into classification as a
communication. This is consistent with other authorities that have
considered this issue.4
The attorney for a party to a contract may initiate a notice to another
party to that contract even if the other party is represented by counsel so
long as the notice is contemplated by the preexisting agreement of the
parties. The notice must not include arguments or inquiries and must be
strictly limited to the purposes the notice provisions of the contract were
intended to fulfill. Though not required by the Rules of Professional
Conduct, common professional courtesy suggests that, except in unusual
circumstances, a copy of the notice should be sent to opposing counsel
simultaneously with the sending of the notice to the designated nonclient.
Approved by Alaska Bar Association Ethics Committee on October 4, 2018.
Adopted by the Board of Governors on October 9, 2018.
G:\Ds\COMM\ETHICS\DRAFTS\2018\Direct Communications with Represented Party final.docx

4 The Committee found the analysis from the Indiana Legal Ethics

Committee particularly persuasive. See Indiana State Bar Ass’n, Legal
Ethics Committee Op. 2003-01 (2003); see also Restatement (Third) of the
Law Governing Lawyers § 99 cmt.g.
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