Can a lawyer send a letter to the opposing party about the case if they copy the opposing lawyer on it?
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This page answers the general question as of 2001. Ezel answers yours: whether it's allowed on your facts, under the current Michigan Rules of Professional Conduct, with citations.
Plain-English summary
The Committee was asked whether a lawyer may send a written communication to opposing counsel's client about the subject of the representation, so long as the lawyer simultaneously sends a copy to opposing counsel, where opposing counsel has not consented. The Committee first held that MRPC 4.2 is not limited to oral communication; the rule applies to written communications addressing the subject of the representation.
It then concluded that a simultaneous copy to opposing counsel does not satisfy the rule's consent requirement. The rule is explicit that, to communicate at all with opposing counsel's client about the subject of the representation, opposing counsel must consent, and here there was none. The Committee reasoned that a simultaneous mailing "would circumvent the requirement to ask for and obtain consent," would improperly shift the burden to opposing counsel to object, and, if treated as satisfying consent, would leave opposing counsel with no basis to object at all.
Drawing on RI-145, the Committee identified the rule's purpose as preventing a represented party from being taken advantage of by adverse counsel, with the party's own attorney theoretically neutralizing the contact. It explained that the lawyer's role is not only to neutralize face-to-face contact but to insulate the client from "one-sided, uninvited communication," and that, given the press of business and uneven mail delivery, a client might receive and feel obliged to respond to the communication before their own lawyer learns of it, to the client's detriment.
Currency note
This opinion was issued in 2001 and interprets the Michigan Rules of Professional Conduct as they then stood. The MRPC have since been amended, and 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 Treat this page as historical context, not current guidance.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: Can a lawyer write directly to the opposing party if they copy the opposing lawyer?
A: No. The opinion concluded that copying opposing counsel does not satisfy MRPC 4.2's consent requirement; the lawyer still needs the opposing lawyer's consent to communicate with that lawyer's client about the representation.
Q: Does MRPC 4.2 apply to letters and emails, or only to in-person or phone contact?
A: Per the opinion, the rule is not limited to oral communication and applies to written communications that address the subject of the representation.
Q: Why isn't notifying opposing counsel enough?
A: The opinion reasoned that a simultaneous copy would circumvent the duty to obtain consent, improperly shift the burden to opposing counsel to object, and risk the client receiving and responding to the communication before their own lawyer was aware of it.
Background and rules framework
The opinion interprets MRPC 4.2 / Model Rule 4.2 (communication with a person represented by counsel), which bars a lawyer from communicating about the subject of the representation with a party the lawyer knows to be represented, absent the other lawyer's consent or authorization by law. The analysis turns on the rule reaching written communications and on a contemporaneous copy to counsel not standing in for the required consent.
Citations and references
Rules of Professional Conduct:
- MRPC 4.2 / Model Rule 4.2 (communication with a represented person)
Other opinions cited:
- RI-145, RI-146: cited on the purpose of the no-contact rule and prior application.
See also
- Mich Ethics Op. RI-145: A Lawyer's Duty to Report Direct Contact With a Represented Party
- Mich Ethics Op. RI-120: Contacting an Organization's Employees in an Intentional-Tort Suit
Source
Original opinion text
Reproduced from the official source for research purposes. The linked source is authoritative.
RI-322
April 2, 2001
SYLLABUS
A lawyer may not send a written communication to the opposing lawyer's client regarding the substance of the representation unless the opposing lawyer has consented to the communication, even if the lawyer sends a copy to opposing counsel.
References: MRPC 4.2; RI-146
TEXT
Inquiry has been made as to whether a lawyer can communicate in writing to opposing counsel's client provided that the lawyer simultaneously sends a copy of the writing to opposing counsel. Opposing counsel has not consented to sending written communications to the client. MRPC 4.2 states:
"In representing a client, a lawyer shall not communicate about the subject of the representation with a party whom the lawyer knows to be represented in the matter by another lawyer, unless the lawyer has the consent of the other lawyer or is authorized by law to do so."
The first question is whether a written communication is covered by MRPC 4.2. The rule does not limit communication to oral communication and there is no sound basis to read a limitation into the rule. Thus, the rule applies to written communications that address the subject of the representation.
The second question is whether the rule is satisfied by simultaneously sending a copy of the writing to opposing counsel. The rule is explicit that in order to communicate at all with opposing counsel's client regarding the subject of the representation, opposing counsel must consent. Here, there has been no consent. A simultaneous mailing to opposing counsel does not satisfy the consent element; it would circumvent the requirement to ask for and obtain consent. And, the simultaneous mailing method would shift the burden to opposing counsel to object to the communication, clearly not contemplated by the rule. Even worse, if simultaneous mailing satisfied the consent element of MRPC 4.2, then opposing counsel may be unable to object, as the rule having been satisfied, there would be no basis for an objection.
A purpose of the rule is to "prevent situations in which a represented party may be taken advantage of by adverse counsel; the presence of the party's attorney theoretically neutralized the contact." RI-145. While arguably providing simultaneous notice to opposing counsel gives counsel an opportunity to protect the client, a lawyer's role concerns not only neutralizing contact in face-to-face situations, but also insulating the client from one-sided, uninvited communication. Moreover, with the press of business and unevenness of mail delivery, the client may receive the communication before the lawyer becomes aware that it has occurred. The client may think he or she has a duty to respond and may do so without discussing the matter with the lawyer, to the client's detriment.
MRPC 4.2 encompasses written as well as oral communication, and prohibits any communication with an opposing lawyer's client regarding the substance of the representation unless the lawyer has the opposing lawyer's consent, regardless whether the opposing lawyer is informed simultaneously of the communication and given a copy of it.
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