Does a lawyer violate the no-contact rule by serving a statutorily required notice directly on a represented adverse party?

Plain-English summary

The committee addressed whether the rule against communicating with a represented party, Rule 4-4.2, bars a lawyer from serving a statutorily required notice or process directly on a represented adverse party. It concluded that the rule must be construed to allow compliance with such statutes, because otherwise attorneys would be constrained from properly representing their clients.

As it had said about the statutorily required worthless-check notice in Opinion 85-3, the committee stated that the direct contact must be strictly limited to that required by statute. It added that it would be appropriate to provide opposing counsel with a copy of any document served on the adverse party.

Currency note

This opinion was issued in 1990, before The Florida Bar's adoption of the 2006 revisions to the Rules of Professional Conduct. Subsequent rule amendments or 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 Treat this page as historical context, not current guidance.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. A note appended to the opinion records that Rule 4-4.2 was later amended to expressly permit, without prior consent, communication to meet a statute or contract requiring notice or service of process directly on an adverse party, strictly restricted to that required and with a copy provided to the adverse party's attorney.

Common questions

Q: Can a lawyer serve a required statutory notice directly on a represented party?

A: The opinion concluded that a lawyer does not violate Rule 4-4.2 by strictly complying with a statute requiring notice or service of process directly on the adverse party.

Q: Are there limits on that contact?

A: Yes. The opinion stated that the direct contact must be strictly limited to that required by the statute, and that it would be appropriate to provide opposing counsel with a copy of any document served on the adverse party.

Background and rules framework

The opinion interprets Rule 4-4.2 (Model Rule 4.2), which bars communicating about the subject of a representation with a person the lawyer knows is represented by another lawyer, absent that lawyer's consent. The committee read the rule to accommodate statutes requiring direct notice or service of process.

Citations and references

Rules of Professional Conduct:

• Fla. Rule 4-4.2 / Model Rule 4.2 (communication with person represented by counsel)

Other opinions cited:

• Fla. Ethics Op. 85-3

See also

• FL Bar Ethics Op. 90-4: The No-Contact Rule and Justice Department Attorneys
• FL Bar Ethics Op. 94-4: Communicating With a Partially Represented Pro Se Party
• FL Bar Ethics Op. 09-1: Communicating With a Represented Government Agency

Source

• Landing page: https://www.floridabar.org/etopinions/etopinion-89-6/
• Original PDF: https://www-media.floridabar.org/uploads/2017/04/FL-Bar-Ethics-Op-89-6-1.pdf

Original opinion text

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

FLORIDA BAR ETHICS OPINION
OPINION 89-6
April 15, 1990
Advisory ethics opinions are not binding.

A lawyer does not violate the ethical rule against communicating with a represented party when the lawyer strictly complies with a statute requiring notice or service of process directly on the adverse party.

Note: The opinion appearing below was approved by the Board of Governors at its March 1990 meeting. Subsequent to the adoption of this opinion, Rule 4-4.2 was amended to include the following provision: "Notwithstanding the foregoing, an attorney may, without such prior consent, communicate with another's client in order to meet the requirements of any statute or contract requiring notice or service of process directly on an adverse party, in which event the communication shall be strictly restricted to that required by statute or contract, and a copy shall be provided to the adverse party's attorney."

RPC: 4-4.2
Opinion: 85-3

Rule 4-4.2 provides:

In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer.

The rule must be construed to allow compliance with statutes requiring notice or service of process directly on the adverse party. Were it otherwise, attorneys would be constrained from properly representing their clients. As we said in a different context about the statutorily required notice of worthless check, however, the direct contact must be strictly limited to that required by statute. Opinion 85-3. Further, it would be appropriate to provide opposing counsel with a copy of any document served on the adverse party.