Does a court rule requiring post-divorce-judgment papers to be served on both the party and the attorney of record violate the no-contact rule?

Plain-English summary

The committee was asked whether a local court rule authorizing service, after judgment in a divorce action, on both the party against whom relief is sought and the attorney of record violates DR 7-104(A)(1), and answered no. It framed the issue as whether an attorney may communicate with an adverse party in a divorce suit after a final decree.

The committee explained that although the Code forbids an attorney from communicating with an adverse party represented by counsel, it does not contemplate the absence of knowledge of whether a party is still represented. The rule's requirement of notice on both the attorney of record and the party satisfies the requirement that the attorney be served while providing additional protection for a party who is no longer represented; given the finality of divorce actions and the likelihood that the attorney's employment ends once a decree is obtained, that protection helps ensure both parties actually receive notice, and the fact that an attorney represented a party in the divorce does not necessarily mean he is bound to represent that party in any subsequent proceeding. The committee noted that both the mandatory Disciplinary Rule and the discretionary Ethical Consideration carve out an exception for exigent circumstances: DR 7-104 qualifies the rule with "unless ... authorized by law to do so," and EC 7-18 extends it to "unless pursuant to law or rule of court," so this local rule of court constitutes such a law or rule. Neither the KBA nor the ABA had ruled on the notice requirement where it is unknown whether a party is represented (the requirements being clear only where the attorney knows a party is or is not represented; see Kentucky Bar Association v. Shane, 553 S.W.2d 467 (Ky. 1977)). Under the special circumstances of a divorce action, its finality, and the possible consequence of a default judgment from failure to effectively serve notice, the committee concluded the rule is reasonable and does not violate any provision of the Code.

Currency note

This opinion was issued in 1979 under Kentucky's former Code of Professional Responsibility (in effect 1971 to 1990), before the Kentucky Bar Association's 1990 adoption of the Rules of Professional Conduct (SCR 3.130) and the substantial 2009 revisions to those rules. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against the current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Does serving both the party and the attorney of record after a divorce decree break the no-contact rule?

A: No, under this opinion. The no-contact rule excepts communications authorized by law or rule of court, and this local rule fits that exception.

Q: Why does the rule require serving the party in addition to the attorney?

A: Because once a divorce decree is entered the attorney's employment likely ends, so serving the party too helps ensure a party who may no longer be represented actually receives notice.

Q: Does prior representation in the divorce bind the attorney to later proceedings?

A: No. The committee said representing a party in the divorce does not necessarily mean the attorney is bound to represent that party in any subsequent proceeding.

Background and rules framework

The opinion applies DR 7-104 (communication with a represented adverse party), with its "authorized by law" exception, and EC 7-18 and Canon 9 of the former Code, to a court rule on post-decree service. The modern analog is Model Rule 4.2 (communication with a represented person), which likewise excepts conduct authorized by law or a court order.

Citations and references

Rules of Professional Conduct:

• DR 7-104 (no-contact rule, with the law-authorized exception), EC 7-18, Canon 9; modern analog Model Rule 4.2

Cases:

• Kentucky Bar Association v. Shane, 553 S.W.2d 467 (Ky. 1977)

See also

• KBA Ethics Op. E-213: Contacting an Opponent's Employees
• KBA Ethics Op. E-207: Joint-Petition Divorce Lawyer
• KBA Ethics Op. E-220: Prosecutor Probing Jurors on Penalty

Source

• Landing page: https://kybar.org/For-Members/Rules-Ethics-Information/Ethics-Opinions
• Original PDF: https://kybar.org/Portals/0/Admin/Ethics%20Opinions/KBA_E-208.pdf

Original opinion text

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

KENTUCKY BAR ASSOCIATION
Ethics Opinion KBA E-208
Issued: March 1979

This opinion was decided under the Code of Professional Responsibility, which was in effect from 1971 to 1990. Lawyers should consult the current version of the Rules of Professional Conduct and Comments, SCR 3.130 (available at http://www.kybar.org), before relying on this opinion.

Question:

Does a local rule of court which authorizes service on the party against whom relief is sought and the attorney of record after a judgment in a divorce action violate DR 7-104(A)(1)?

Answer:

No.

References:

DR 7-104; Canon 9; EC 7-18; Kentucky Bar Assn v. Shane, S53 S.W.2d 467 (Ky. 1977)
OPINION

The problem presented is whether an attorney should be permitted to communicate with an adverse party in a divorce suit after a final decree has been obtained.
Although the Code forbids communication by an attorney with an adverse party represented by an attorney, it does not contemplate the absence of knowledge whether a party is represented by an attorney. The rule’s provision that notice be served on both the attorney of record and the party meets the requirement that the attorney be served but provides additional protection for a party no longer represented. Due to the nature of finality in divorce actions and the likelihood that once a decree is obtained, the attorney’s employment will be ended, such protection is needed to insure that both parties will, in fact, receive notice. The fact that an attorney represents a party in a divorce action does not necessarily mean that the attorney is bound to represent the same party in any subsequent proceeding involving the same action.
Both the Disciplinary Rule, which is mandatory, and the Ethical Consideration, which is discretionary provide for an exception to the general rule where exigent circumstances are present. DR 7-104 qualifies the rule with “unless … authorized by law to do so” and EC 7-18 extends the exception to “unless pursuant to law or rule of court.” The requirement of this local rule of court constitutes such a law or rule of court Neither the KBA nor the ABA have ruled on the requirement of notice where it is not known whether a party is represented by counsel. The requirements are clear only where an attorney knows that a party is or is not represented. (See Kentucky Bar Assn v. Shane, 553 S.W.2d 467 (Ky. 1977).) Under the special circumstances of a divorce action, its characteristic of finality and the possible consequences of failure to effectively serve notice upon

an adverse party (i.e., a default judgment); the rule as it stands is reasonable and does not violate any provision of the Code of Professional Responsibility.

Note to Reader
This ethics opinion has been formally adopted by the Board of Governors of the Kentucky Bar Association under the provisions of Kentucky Supreme Court Rule 3.530 (or its predecessor rule). The Rule provides that formal opinions are advisory only.