Can a lawyer tell the opposing party's regular attorney about a settlement offer the insurer's defense lawyer ignored?
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This page answers the general question as of 1992. Ezel answers yours: whether it's allowed on your facts, under the current Illinois Rules of Professional Conduct, with citations.
Plain-English summary
Attorney A represented the plaintiff in a personal injury suit against a school district. Attorney B, employed by the district's insurer, defended the suit. Attorney A made a policy-limits settlement demand to the district through Attorney B, to expire on a set date, but the date passed with no response. Knowing from common community knowledge that Attorney C was the district's regularly retained attorney, Attorney A asked Attorney C whether he was aware of the apparently rejected offer; Attorney C said he had not been told, and Attorney A sent him copies of the correspondence when asked. The inquiry asked whether Attorney A violated any rule by communicating the case status to Attorney C, and whether Attorney B violated the rules by not conveying the demand to his client.
The opinion concluded that Attorney A did not violate any rule by communicating the status of the suit to Attorney C, because Rule 4.2 would bar communicating directly with a represented "party," and Attorney C was a lawyer, not the party. On the second question, the opinion concluded it might be presumptuous to assume Attorney B had not conveyed the demand, but that if he had not, he would violate Rule 1.3 (reasonable diligence and promptness) and Rule 1.4(a) (keeping a client reasonably informed and promptly complying with reasonable requests for information).
Currency note
This opinion was issued in 1992, before Illinois adopted the 2010 Illinois Rules of Professional Conduct. The ISBA Board of Governors affirmed the opinion in May 2010 as generally consistent with the 2010 Rules (pointing to Rules 1.3, 1.4, and 4.2), while noting the specific standards referenced may differ from the 2010 Rules. 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 Treat this page as historical context, not current guidance.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 or requirement mentioned here.
Common questions
Q: Can a lawyer contact the opposing party's regular attorney about a settlement offer?
A: The opinion concluded this does not violate Rule 4.2, because that rule bars contacting a represented party directly, not communicating with another lawyer.
Q: What rule applies if defense counsel ignores a settlement demand?
A: The opinion concluded that if the insurer's defense lawyer failed to convey the demand to his client, he would violate Rule 1.3 (diligence and promptness) and Rule 1.4(a) (keeping the client informed).
Q: Did sending the correspondence to the other lawyer cross any line?
A: No. The opinion concluded the communication with Attorney C, including sending copies of the settlement correspondence at his request, did not violate the rules.
Background and rules framework
The opinion interpreted Rule 4.2 (communication with a person represented by counsel), reading its bar to reach the represented party rather than another lawyer, and applied Rules 1.3 (diligence) and 1.4 (communication with the client) to the defense lawyer's handling of the demand (Model Rules 4.2, 1.3, 1.4).
Citations and references
Rules of Professional Conduct:
- Model Rule 4.2 (communication with represented persons) / Illinois Rule 4.2
- Model Rule 1.3 (diligence) / Illinois Rule 1.3
- Model Rule 1.4 (communication) / Illinois Rule 1.4(a)
See also
Source
- Landing page: https://www.isba.org/ethics/opinions/9121
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