In Kentucky, does a lawyer violate Rule 4.2 when the lawyer's own client talks to the opposing party, and must a divorce mediator check whether participants have counsel?

Plain-English summary

The opinion answered two questions. On the first, the Committee concluded that a lawyer has not necessarily violated Rule 4.2 simply because the lawyer's client talks to the opposing party. The Committee noted that the ABA had rescinded opinions treating such contacts as per se violations, that such party-to-party communications are usually unproductive or counterproductive, and that conventional wisdom is to discourage them, but that a lawyer cannot be responsible for a "violation" merely because the client makes the contact, and in rare circumstances such discussions can further resolution. The Committee warned, however, that a lawyer may not circumvent a disciplinary rule, or attempt to, through the acts of another (Rule 8.3(a); see also the Comment to Rule 4.2).

On the second question, the Committee concluded that a divorce mediator should ascertain whether participants are represented by counsel. Referring to KBA E-335 (1989) and the ABA Standards of Practice for Divorce and Family Mediation, under which the mediator "shall" inform participants of the need for independent legal counsel, the Committee reasoned that a mediator should inquire whether participants already have counsel and that such counsel should be notified of the mediation unless the client-participant objects. The Committee added that it had received inquiries suggesting some lawyers were urging divorce clients to obtain signatures on settlement agreements or rush the other spouse into mediation behind opposing counsel's back, conduct that may violate Rules 4.2 and 8.3.

Currency note

This opinion was issued in 1994 and predates the Kentucky Supreme Court's substantial 2009 revisions to the Rules of Professional Conduct (SCR 3.130), as the opinion's own prefatory note states. The opinion refers to Comment 3 to Rule 4.2 (renumbered to Comment 4) and to Rule 8.3 (renumbered as noted by the bar), and points to Rule 2.4 on a lawyer serving as a third-party neutral. Treat this page as historical context, not current guidance.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 a lawyer violate Rule 4.2 if the client contacts the opposing party directly?

A: No, not necessarily. The Committee concluded the lawyer is not responsible for a violation merely because the client makes the contact, though the lawyer should generally discourage it.

Q: Can a lawyer have the client make the contact to get around Rule 4.2?

A: No. Per the opinion, a lawyer may not circumvent a disciplinary rule, or attempt to, through the acts of another (Rule 8.3(a)).

Q: Must a divorce mediator check whether participants have lawyers?

A: Yes. The Committee concluded a mediator should inquire whether participants are represented and see that counsel is notified of the mediation unless the participant objects.

Background and rules framework

The opinion interprets KRPC 4.2 (communication with a represented person; Model Rule 4.2) and KRPC 8.3 (then cited for the bar on circumventing a rule through another's acts), and points to the later Rule 2.4 on a lawyer serving as a third-party neutral (Model Rule 2.4). The analysis turns on the distinction between a client's own contact and a lawyer's use of the client to evade the rule, and on a mediator's duty to identify represented participants.

Citations and references

Rules of Professional Conduct:

• MR 4.2 / KRPC 4.2 (communication with a represented person)
• MR 8.4 / KRPC 8.3(a) (violating the rules through the acts of another)
• MR 2.4 / KRPC 2.4 (lawyer serving as a third-party neutral)

Other opinions cited:

• KBA E-335 (1989): a divorce mediator and the ABA Standards of Practice for Divorce and Family Mediation
• ABA opinions rescinding per se treatment of party contacts

See also

• KBA Ethics Op. E-392: Corporate Counsel Contacting a Represented Employee Who Has Sued the Corporation
• KBA Ethics Op. E-381: Ex Parte Contact With an Adverse Organization's Former Employees

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-365.pdf

Original opinion text

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

KENTUCKY BAR ASSOCIATION
Ethics Opinion KBA E-365

Issued: March 1994

Since the adoption of the Rules of Professional Conduct in 1990, the Kentucky Supreme
Court has adopted various amendments, and made substantial revisions in 2009. For
example, the opinion refers to Comment (3) to Rule to 4.2, which was renumbered to
Comment (4) and to Rule 8.3, which was renumbered to Rule 8.4. See also Rule 2.4
entitled “Lawyer serving as third-party neutral.” Lawyers should consult the current
version of the rules and comments, SCR 3.130 (available at http://www.kybar.org),
before relying on this opinion.

Question 1:

Has a lawyer necessarily violated Rule 4.2 if his or her client talks to the opposing
party?

Answer:

No. But counsel should not deliberately circumvent a disciplinary Rule through
another. See Rule 8.3.

Question 2:

Must a divorce mediator attempt to ascertain that a participant is represented by
counsel?

Answer:

Yes.
OPINION

Regarding Question 1 see Rule 4.2 Comment [1]. The ABA has rescinded all opinions
purporting to make such contacts per se violations of the Model Code or the Model Rules.
However, such communications are usually unproductive if not counterproductive.
Conventional wisdom suggests that the lawyer should discourage such contacts, but he or she
cannot be responsible for a “violation” simply because his client makes such a contact.
Furthermore, there are rare circumstances in which discussions between the parties can further
the resolution of a controversy.
On the other hand, we must warn that a lawyer is not permitted to circumvent a
disciplinary rule or attempt to do so through the acts of another. Rule 8.3(a). See also Comment
[3] to Rule 4.2.
Regarding Questions 2, we refer the reader to KBA E-335 (1989). That Opinion refers to
the ABA Standards of Practice for Divorce and Family Mediation. Those standards indicate that
the mediator “shall” inform the participants of the need for independent legal counsel. It seems
obvious that a mediator should make inquiry as to whether the participants already have legal
counsel. It also seems to follow that such counsel should be notified of the mediation unless his
or her client-participant has some objection.
The Committee has received a number of inquiries suggesting that some lawyers may be
urging their divorce clients to obtain signatures on settlement agreements, or to rush the other

spouse into mediation, behind the back of opposing counsel. Such conduct may violate Rules
4.2 and 8.3. Such conduct may also undermine the validity of any agreement or settlement,
although that is a legal question.

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.