Can a lawyer contact the opposing party directly to gather information about a pending case without the other party's lawyer's consent?

Plain-English summary

After a deposition was postponed by agreement between counsel, the defendant's co-counsel, accompanied by one of the defendants, sought out the plaintiffs directly, questioned them about the nature of a claimed illness, and asked what advice the plaintiffs' attorney had given about attending the deposition. No leave of court was obtained, and no effort was made to contact the plaintiffs' attorney before the contact. The co-counsel later testified in support of a motion to dismiss and for fees. The committee was asked whether it was proper to communicate with an adverse party during litigation without the consent of that party's counsel. The committee answered no.

The committee relied on Canon 9 of the Canons of Professional Ethics ("A lawyer should not in any way communicate upon the subject of controversy with a party represented by counsel, but should deal only with his counsel") and DR 7-104, which bars a lawyer from communicating about the subject of representation with a person the lawyer knows to be represented, absent the other lawyer's prior consent or authorization by law. It surveyed the ABA opinions construing Canon 9: ABA Formal Opinion 187 (1938) held the canon must be construed literally and does not allow communication with an opposing party without counsel's consent even to investigate the facts; ABA Informal Decision C-426 held the materiality of the information obtained has no bearing on the ethics question; and ABA Informal Decision C-517 confirmed strict application, listing only two exceptions (the other lawyer consents, or vital settlement information is being withheld from the client).

The committee added that the liberalized civil discovery rules do not contemplate discovery of privileged attorney-client information, and that Canon 22's requirement of candor and fairness toward opposing counsel includes accepting in good faith what opposing counsel conveys. It concluded that the canons and disciplinary rules protecting against improper approaches to an adverse party are to be strictly applied.

Currency note

This opinion was issued in 1973 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. The no-contact rule the opinion applies is now Model Rule 4.2 (and Kentucky's SCR 3.130(4.2)), whose text and commentary differ from former Canon 9 and DR 7-104. 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: Can a lawyer contact the opposing party directly to investigate the facts?

A: No. Citing ABA Formal Opinion 187, the committee held that the no-contact rule must be construed literally and does not allow communication with a represented opposing party without counsel's consent, even when the purpose is merely to investigate.

Q: Does it matter whether the information obtained turns out to be material?

A: No. The committee, following ABA Informal Decision C-426, held that the materiality or immateriality of the information obtained from the adverse party has no bearing on the ethics question.

Q: Were there any exceptions the committee recognized?

A: Two, drawn from ABA Informal Decision C-517: contact is proper if the adverse party's attorney consents, or if information vital to settlement is not being communicated by that attorney to his client.

Background and rules framework

The opinion applied Canon 9 and Canon 22 of the Canons of Professional Ethics together with DR 7-104 of the Code of Professional Responsibility, the rules governing communication with a represented adverse party and candor toward opposing counsel. The modern analog is Model Rule 4.2 (communication with a person represented by counsel), adopted in Kentucky as SCR 3.130(4.2).

Citations and references

Rules of Professional Conduct:

• Canon 9 and Canon 22 (Canons of Professional Ethics) and DR 7-104 (Code of Professional Responsibility); modern analog Model Rule 4.2

Other opinions cited:

• ABA Formal Opinion 187 (1938) (Canon 9 construed literally; no contact even to investigate the facts)
• ABA Informal Decision C-426 (Mar. 16, 1961) (materiality of information obtained is irrelevant to the ethics question)
• ABA Informal Decision C-517 (Feb. 15, 1962) (strict application; two exceptions: counsel's consent, or withholding of vital settlement information)

See also

• KBA Ethics Op. E-95: Copying Insurer on Demand
• KBA Ethics Op. E-208: Post-Decree Service and No-Contact
• KBA Ethics Op. E-213: Contacting an Opponent's 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-065.pdf

Original opinion text

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

KENTUCKY BAR ASSOCIATION
Ethics Opinion KBA E-65
Issued: May 1973

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:

May an attorney contact an opposing party to obtain information relating to a pending controversy, without the consent of opposing counsel?

Answer:

No.

References:

Canon 9, 22; DR 7-104

OPINION

Defendant's attorney gave notice to take depositions of three plaintiffs. On the day of the scheduled deposition, the plaintiff's attorney, upon being advised of an illness to one of the plaintiffs by the wife of such plaintiff, who was also a party to the action, notified the chief counsel for the defendants approximately two hours before the scheduled depositions. The chief counsel preferred to take all three plaintiffs' depositions at the same time, so he agreed to postpone the depositions and to notify his co-counsel of such a decision.
In reliance upon the agreement with the defendant's chief counsel, the plaintiffs' attorney did not appear for the depositions, nor did either of the plaintiffs. The defendant's co-counsel had been advised at least one hour before the scheduled depositions that they would not be taken.
Defendant's co-counsel, with one of the defendants, then searched out the plaintiffs and inquired of the nature of the illness and attempted to determine whether or not in fact the plaintiff was ill or was tending to other business. No leave of court was obtained and no effort was made to contact the plaintiffs' attorney prior to contacting the plaintiff.
The defendant's co-counsel interrogated the plaintiff concerning the advice he had received from the plaintiff's attorney about attending the deposition and communications between them about the deposition. Defendant's co-counsel later testified as a witness in support of his motion to dismiss the case and for an affirmative award of counsel fees and expenses for attending the deposition.
The issue arises as to whether or not it was proper to communicate with an adverse party pending litigation without the consent of his counsel.
Canon 9 of the Canons of Professional Ethics holds:

A lawyer should not in any way communicate upon the subject of controversy with a party represented by counsel, but should deal only with his counsel.
And, DR 7-104 states:
(a) During the course of the representation of a client a lawyer shall not:
(1) Communicate or cause another to communicate on the subject of 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.
Through the years, the ABA has dealt with Canon 9 in numerous situations. In ABA Formal Opinion 187 (1938), the Committee held:
It is clear from the earlier opinions of this Committee that Canon 9 is to be construed literally and does not allow a communication with an opposing party, without the consent of his counsel, though his purpose be merely to investigate the facts.
It is evident from reading the earlier opinions and later ones that this is the clear intent of the Canon. ABA Informal Decision C-426, issued March 16, 1961, held that the materiality or the immateriality of the information which the attorney might obtain from the adverse party in a statement would have no bearing on the question of ethics involved. And, later in ABA Informal Decision C-517, issued February 15, 1962, the Committee again held for its strict application and listed but two exceptions to such application: (1) If the attorney for the other party consents to the contact, then contact will be proper, and (2) If information vital to the settlement of the case is not communicated by the other attorney to his client.
Despite the increased liberality of the Civil Rules and forms of discovery, the rules do not contemplate discovery of privileged information between attorney and client. While it is the duty of an attorney to represent his client zealously, it is also his duty to represent him within the bounds of the law.
It is also proper to note that Canon 22 provides that the conduct of the lawyer before the court and with other lawyers should be characterized by candor and fairness. Clearly this includes trust in one's opposing counsel and acceptance in good faith of what he conveys to you. The results of gross mistrust in the legal profession are immeasurable.
The reasons for the prohibition upon communications are clear and convincing. They arise out of the nature of the relation of attorney and client and are imperative to the rights and interests of the adverse party and his attorney. To preserve the proper functioning of the legal system, as well as to shield an adverse party from improper approaches, the Canons and Disciplinary Rules are to be strictly applied.

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.