Can a lawyer send information directly to the opposing party when he suspects opposing counsel isn't passing it along?

Plain-English summary

A lawyer strongly suspected that opposing counsel was not conveying settlement information to opposing counsel's client (an insurance company). He asked whether, without opposing counsel's consent and in the face of a specific request not to do so, he could send the client copies of his letters to opposing counsel containing that information. He suggested that DR 7-104(A)(1) might prohibit only out-of-presence discussions, and might not reach a relatively sophisticated party such as an insurer.

The committee answered no. It read DR 7-104(A)(1), which bars communicating with a represented party on the subject of the representation without the other lawyer's consent, to cover letters as well as discussions: to "communicate" information is to transmit it, whether or not it is discussed. The committee found nothing in the rule excluding "sophisticated" parties such as insurance companies, observing that letting a lawyer make his own subjective judgment about who is sophisticated would emasculate the rule ("Sophistication, like beauty, is in the eye of the beholder"). It cited Opinion 74-52 and ABA Formal Opinion 124.

The committee did not decide whether opposing counsel had committed any violation, but noted DR 1-102 and DR 1-103 on a lawyer's obligation to report misconduct, and ABA Formal Opinion 326 (decided under EC 7-7 and EC 7-8) for the point that a lawyer should inform his client of all settlement offers made by the opposing party.

Currency note

This opinion was issued in 1977, before The Florida Bar's adoption of the 2006 revisions to the Rules of Professional Conduct. It applied the former Code of Professional Responsibility, which has since been replaced. Treat this page as historical context, not current guidance. Verify against current Rule 4-4.2 before relying on any specific requirement mentioned here.

Common questions

Q: Can a lawyer send a settlement offer directly to the opposing party if he thinks opposing counsel is hiding it?

A: The opinion concluded no; he may not transmit the information himself to the represented adverse party without opposing counsel's consent.

Q: Does the rule against contacting a represented party apply to a sophisticated party like an insurer?

A: Yes. The opinion concluded the rule does not exclude insurance companies or other parties thought to be sophisticated.

Q: Did letters count, or only conversations?

A: Per the opinion, "to communicate information is to transmit that information," so letters to the represented party are covered, not only discussions.

Background and rules framework

The opinion applied DR 7-104(A)(1) of the former Code of Professional Responsibility, which barred communicating with a represented party about the subject of the representation without the consent of that party's counsel. That provision corresponds to Model Rule 4.2 (communication with a represented person); the current Florida counterpart is Rule 4-4.2. The opinion also referenced the duty to report misconduct (DR 1-102, DR 1-103) and the duty to convey settlement offers (EC 7-7, EC 7-8), without resolving any violation by opposing counsel.

Citations and references

Rules of Professional Conduct (as cited, former Code):

• CPR DR 7-104(A)(1) (no communication with a represented party without counsel's consent)
• CPR DR 1-102, DR 1-103; EC 7-7, 7-8, 7-11; Canons 8, 9

Other opinions cited:

• Florida Ethics Opinions 74-52, 76-26
• ABA Formal Opinions 124, 326

See also

• ABA Formal Op. 502: Pro Se Lawyer and Rule 4.2
• ABA Formal Op. 503: 'Reply All' and Rule 4.2
• ABA Formal Op. 472: Limited-Scope Clients and Contact

Source

• Landing page: https://www.floridabar.org/etopinions/etopinion-76-21/
• Original PDF: https://www-media.floridabar.org/uploads/2017/04/FL-Bar-Ethics-Op-76-21-1.pdf

Original opinion text

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

FLORIDA BAR ETHICS OPINION
OPINION 76-21
April 19, 1977
Advisory ethics opinions are not binding.
A lawyer who suspects that opposing counsel's client is not receiving settlement offers and other vital information concerning pending litigation may not himself transmit such information to the adverse party.
Canons: 8, 9, Canons of Professional Ethics
CPR: DR 1-102, 1-103; EC 7-7, 7-8, 7-11; DR 7-104(A)(1)
Opinions: 74-52, 76-26; ABA Formal 124, 326
Vice Chairman Lehan stated the opinion of the committee:
A lawyer strongly suspects that opposing counsel is not conveying to the opposing counsel's client, which is an insurance company, information such as a settlement offer, concerning a dispute between the lawyers' clients. He inquires whether he may, without the consent of opposing counsel and in the face of a specific request from opposing counsel that he not do so, send opposing counsel's client copies of letters written by him to opposing counsel containing such information.
He recognizes the existence of DR 7-104(A)(1) as to restrictions on communicating with one of adverse interest. But he suggests that the intent of DR 7-104(A)(1), in its provision as to a lawyer not being permitted to "communicate" with the other lawyer's client, may be to prohibit only discussions with that client out of the presence, and without the knowledge, of opposing counsel. He further suggests that communications to a relatively sophisticated adverse party, such as an insurance company, may not be covered by DR 7-104(A)(1).
The Committee answers the Inquiry in the negative.
DR 7-104(A)(1) provides:
During the course of his representation of a client a lawyer shall not . . . [c]ommunicate . . . on the subject of the representation with a party he knows to be represented by a lawyer in that matter unless he has the prior consent of the lawyer representing such other party or is authorized by law to do so.
To exclude from the proscriptions of those provisions of the Code letters to an adverse party, and include only discussions as suggested by the inquiring attorney, would not only be contrary to the specific terms of DR 7-104(A)(1) but would emasculate the meaning and intent of its provisions. To "communicate" information is to transmit that information, whether or not the information is discussed with the party to whom it is communicated. The purpose of DR 7-104 is to promote the best functioning of the legal system through advice or assistance being given to a party by his own counsel who represents that party's interests and not by counsel with adverse interests. See EC 7-11.
DR 7-104(A)(1), in its reference to communicating with "a party," does not exclude insurance companies or any other party who might be thought to be relatively "sophisticated." To interpret the Disciplinary Rule to exclude from its provisions such a party would also emasculate its meaning because a lawyer with adverse interests could thereby avoid the Rule by making his own subjective determination, however debatable, as to who is "sophisticated" and who is not, whether the party be a natural person or a business entity. Sophistication, like beauty, is in the eye of the beholder.
This conclusion is supported by Opinion 74-52. See also Opinion 76-26. The headnote of ABA Formal Opinion 124, decided under former Canon 9, also states that, "an attorney may not negotiate a settlement with an adverse party represented by counsel without the knowledge and consent of such counsel."
Under the present inquiry the grounds for the attorney's strong suspicion that opposing counsel is not conveying information to his client are not given, and we have not been presented with, and do not decide, any question as to possible ethical violation by the counsel for the insurance company. But we note the provisions of DR 1-103 and DR 1-102 as to a lawyer's obligation to report ethical violations to a grievance committee and ABA Formal Opinion 326, decided with reference to EC 7-7, EC 7-8 and former Canon 8, stating that "a lawyer should inform his client of all settlement offers made by the opposing party."