After litigation ends, may a lawyer write directly to the opposing party about a post-judgment matter, or must contact still go through that party's counsel of record?
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This page answers the general question as of 1993. Ezel answers yours: whether it's allowed on your facts, under the current Maine Rules of Professional Conduct, with citations.
Plain-English summary
Bar counsel asked about an attorney (Attorney X) who represented a divorce defendant for over two years, with post-judgment matters litigated and resolved over several more years; the plaintiff was represented throughout by Attorney Y. Some ten months after the last litigation concluded, Attorney X intended to write the plaintiff directly to instruct the plaintiff to follow new arrangements for child-support payments, sending a copy to Attorney Y, who remained the plaintiff's last counsel of record. The question was whether the direct letter would violate Maine Bar Rule 3.6(f).
The Commission concluded that it would. Rule 3.6(f) bars a lawyer, during a representation, from communicating about the subject of the representation with a party the lawyer knows to be represented by another lawyer in that matter, absent that lawyer's consent or legal authorization. The pivotal inquiry was whether Attorney X "knows" the plaintiff is represented in the matter. The Commission found it difficult to conclude otherwise: child support clearly lies within the domestic-relations matter, the two attorneys had represented their clients in that matter for years, Attorney Y remained counsel of record, and Attorney X's intent to copy Attorney Y reflected awareness of that fact. Given that history, the Commission concluded Attorney X possessed actual knowledge that the plaintiff continued to be represented and must direct the communication to Attorney Y rather than to the opposing party personally.
The Commission added that if Attorney Y, once contacted, no longer considers himself or herself to represent the plaintiff, the attorney will so advise Attorney X, who may then contact the opposing party without violating Rule 3.6(f).
Currency note
This opinion was issued in 1993, before Maine's replacement of the former Maine Bar Rules with the Maine Rules of Professional Conduct (effective August 1, 2009). 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 Treat this page as historical context, not current guidance.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.
Common questions
Q: Does the no-contact rule still apply after the litigation has ended?
A: The opinion concluded it does where the lawyer still has actual knowledge that the opposing party is represented by counsel of record in the matter. Here, ten months after the last litigation, the lawyer was required to communicate through opposing counsel.
Q: What made the lawyer's knowledge of the other party's representation "actual"?
A: The opinion pointed to the years of representation in the same domestic-relations matter, the opposing lawyer remaining counsel of record, and the lawyer's own intent to copy that counsel on the letter, which together showed actual knowledge of continued representation.
Q: How could the lawyer properly contact the opposing party?
A: The opinion stated the lawyer must direct the communication to opposing counsel; if that counsel, once contacted, advises that he or she no longer represents the party, the lawyer may then contact the party directly without violating Rule 3.6(f).
Background and rules framework
The opinion interprets Maine Bar Rule 3.6(f), which provides that during a representation a lawyer shall not communicate, or cause another to communicate, on the subject of the representation with a party the lawyer knows to be represented by another lawyer in that matter, unless the lawyer has the prior consent of that other lawyer or is authorized by law to do so. This corresponds to ABA Model Rule 4.2 (communication with a person represented by counsel).
Citations and references
Rules of Professional Conduct:
- Model Rule 4.2 (communication with represented persons)
- Maine Bar Rule 3.6(f)
See also
- ABA Formal Op. 92-362: Settlement Contact With Opposing Party
- Maine Ethics Op. 181: Contacting Municipal Officials as Agent for a Union
Source
Original opinion text
Reproduced from the official source for research purposes. The linked source is authoritative.
Issued by the Professional Ethics Commission
Date Issued: December 1, 1993
Question Presented
Bar counsel has requested an advisory opinion regarding the attorney's conduct arising from the following set of facts. Attorney X represents a defendant in divorce litigation for over two years. Various post-judgment matters are subsequently litigated and resolved over an additional period lasting several years. Attorney X continues to represent the defendant. Plaintiff is represented throughout by Attorney Y.
Some ten months after concluding the last piece of litigation, Attorney X intends to write the plaintiff directly instructing plaintiff to follow new arrangements for the payment of child support, with a copy of the letter to Attorney Y, still plaintiff's last counsel of record.
Would Attorney X violate the Maine Bar Rules, particularly Rule 3.6(f), by communicating directly with the opposing party?
Opinion
During the course of a client's representation, a lawyer shall not communicate or cause another to communicate on the subject of the representation with a party the lawyer knows to be represented by another lawyer in that matter unless the lawyer has the prior consent of the lawyer representing such other party or is authorized by law to do so.
Rule 3.6(f), Maine Bar Rules.
The pivotal inquiry is whether Attorney X at the time of the questioned communication "knows" that the plaintiff is represented by another lawyer in the "matter" at hand. It is difficult to conclude otherwise given the scenario under discussion. The subject of child support payments clearly lies within the scope of a domestic relations matter. Attorney X and Attorney Y had represented their respective clients in the matter over a period lasting several years. Attorney Y remained counsel of record for the plaintiff. In apparent deference to these circumstances, Attorney X intends to copy the correspondence to Attorney Y. Given that history, Attorney X plainly possesses actual knowledge that plaintiff continues to be represented by Attorney Y in the relevant matter. There are no contrary indications. Attorney X must direct the communication to plaintiff's lawyer, Attorney Y, and not to the opposing client personally.
If plaintiff's attorney, once contacted, no longer considers him/herself to represent that party, the attorney will certainly so advise Attorney X who may then contact the opposing party without running afoul of Rule 3.6(f).
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