May a California attorney send a written communication addressed to the president, managing partner, or board of directors of a represented business organization, where delivery is made through the organization's attorney?

Currency note

This opinion was issued in 1993, before California's November 1, 2018 adoption of the renumbered Rules of Professional Conduct. Former Rule 2-100 corresponds to current Rule 4.2 (communication with a represented person). 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 Treat this page as historical context, not current guidance.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.

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Plain-English summary

The committee considered an attorney who, while representing a client, wished to communicate with an opposing corporation's board of directors or president on a matter relevant to the representation. The attorney proposed to do so by writing directly to the board of directors but addressing the board in care of the corporation's attorney at counsel's business address. The corporation's attorney had not consented to the communication.

The committee identified Rule 2-100(A) as prohibiting a member, "while representing a client," from communicating directly or indirectly about the subject of the representation with a party the member knows to be represented by another lawyer in the matter, unless the member has the other lawyer's consent. Rule 2-100(B)(1) defines "party" to include "an officer, director, or managing agent of a corporation or association, and a partner or managing agent of a partnership."

The committee identified two issues. First, whether the letter to the board of directors is to a "party." The committee rejected the argument that the board's omission from Rule 2-100(B)'s specification places it outside the rule, identifying that a board can act only through its individual directors and a communication with the board is a communication with its members. Citing Opinion of the Alaska Bar Association 90-1 and California State Bar Formal Opinion 1991-125, the committee identified analogous holdings that ex parte contact with directors of represented entities violates the prohibition.

Second, whether the letter, addressed in care of the organization's attorney, is a "communication" proscribed by Rule 2-100. The committee identified Rule 2-100 as not designed to prevent or hinder communications between opposing parties; its purpose, as the Commentary makes clear, is to control communications between a member and persons the member knows to be represented by counsel. The committee identified that nothing in Rule 2-100 constrains parties' ability to meet and discuss the matter. Citing LACBA Formal Opinion 375, the committee identified that the client may communicate directly with the opposing party without that party's counsel's consent, even with the knowledge of the client's own counsel.

The committee identified the underlying objective as preserving the integrity of the client-lawyer relationship by protecting the represented party from opposing counsel's superior skill (citing United States v. Lopez; United States v. Jamil; Abeles v. State Bar of California; State Bar Committee Formal Opinion 1979-49).

The committee identified the critical factor: the corporation's attorney will naturally review the communication before taking further action; the attorney may perceive a duty to deliver to the board but the message is wholly within her control. The committee identified the communication as unilateral; the organization's attorney can control the timing of the message and coordinate any response.

The committee concluded that the routing through opposing counsel does not threaten Rule 2-100's values. In footnotes, the committee identified that direct delivery to the board (with only notice to counsel) would be a probable violation of Rule 2-100, citing LACBA Opinion 350 (disapproving transmission of a letter from plaintiff's counsel to a defendant insured). The committee expressed no opinion on the receiving attorney's ethical duty to deliver the written communication (which turns on the circumstances and the nature of the communication), but referenced Rule 3-510 and Lysick v. Walcom on the duty to convey written offers.

Common questions

Q: Can a California lawyer write to a represented corporation's board of directors if the letter goes through the corporation's attorney?

A: Per the opinion, yes. The committee identified the routing as preserving Rule 2-100's values because the receiving attorney controls timing of delivery, review, and any response.

Q: Is a board of directors a "party" under Rule 2-100?

A: Per the opinion, yes. The committee identified that a board can act only through its individual members; communicating with the board is communicating with those members.

Q: Can the attorney send the letter directly to the board with only a copy to counsel?

A: Per the opinion (footnote), that would be a probable violation of Rule 2-100. The committee identified LACBA Opinion 350 as disapproving such practice.

Q: Can the parties themselves communicate directly without their lawyers' consent?

A: Per the opinion (citing LACBA Opinion 375), yes. Rule 2-100 governs lawyer-to-represented-party communications, not party-to-party communications.

Q: Does the receiving attorney have a duty to actually deliver the letter to the board?

A: The committee expressed no opinion on the extent of the obligation; the committee identified that the duty depends on circumstances and the nature of the communication, with reference to Rule 3-510 (duty to convey written offers) and Lysick v. Walcom.

Background and rules framework

The opinion interprets former California Rule of Professional Conduct 2-100 (communication with represented party), particularly subdivisions (A) and (B)(1), and references Rule 5-310. The committee anchored its analysis in Abeles, United States v. Lopez, and United States v. Jamil, and identified Rule 12 of the predecessor Rules of Professional Conduct (Business and Professions Code section 6076 (West 1962)) and ABA Model Code DR 7-104(A)(1) as related authorities.

Citations and references

Rules of Professional Conduct (former):

• California Rule 2-100 (communication with represented party)
• California Rule 5-310 (referenced)

Statutes:

• California Business and Professions Code section 6076 (predecessor Rule 12)

Cases:

• Abeles v. State Bar of California, 9 Cal.3d 603 (Cal. 1973), purpose of ex parte prohibition
• Lysick v. Walcom, 258 Cal.App.2d 136 (1968), duty to convey settlement offers
• United States v. Jamil, 546 F.Supp. 646 (E.D.N.Y. 1982)
• United States v. Lopez, 765 F.Supp. 1433 (N.D. Cal. 1991)

Other opinions cited:

• LACBA Formal Opinions 350 (1975), 375 (1978)
• California State Bar COPRAC Formal Opinions 1979-49, 1991-125
• Alaska Bar Association Opinion 90-1
• ABA Model Code of Professional Responsibility, DR 7-104(A)(1)

See also

• LACBA Opinion 490: Ex Parte Communications With Represented Parties and Adverse Witnesses
• LACBA Opinion 487: Ex Parte Advice to Represented Individual About Counsel's Competence

Source

• Landing page: https://lacba.org/?pg=ethics-opinions
• Original PDF: https://lacba.org/docDownload/2010971