Can a lawyer tell a client to contact the represented opposing party directly to talk settlement, and what if the client does it on their own?

Plain-English summary

Frustrated litigants sometimes want to bypass the lawyers and talk settlement directly with the opposing party. The committee addressed whether a lawyer may advise a client to do so, and what the lawyer's obligations are when a client intends to, or already did, communicate directly with a represented adversary. It reached three conclusions: a lawyer may not advise or encourage a client to communicate directly with a represented adverse party without counsel's consent; a lawyer need not discourage or interfere with a client-initiated communication; and a lawyer may not assist or advise the client in conducting negotiations that result from a client-initiated contact without opposing counsel's consent.

The committee grounded the first conclusion in DR 7-104(A)(1), which bars a lawyer from communicating, or causing another to communicate, with a represented party without counsel's consent, a rule it described as admitting no exceptions and designed to protect the adverse party's right to effective counsel. It concluded the lawyer's own client is "another" for this purpose, so a lawyer may not use the client as a conduit. Crucially, the committee read "causing" broadly: it includes not only directing the substance of the communication but also suggesting, recommending, encouraging, or endorsing that the client make contact, even when the client first raises the idea, if the lawyer's words are a material factor in the client's decision.

On client-initiated contact, the committee declined to follow the old ABA "duty to dissuade" rule of Formal Opinion 75 (withdrawn by the ABA in Formal Op. 84-350), concluding the Code does not require a lawyer to discourage a client from doing what the lawyer cannot do, consistent with the parties' common-law right to settle without their lawyers. So a lawyer may tell the client that such contact is not prohibited and is the client's right, but should promptly add that the lawyer cannot assist, direct, or participate absent opposing counsel's consent. The committee cautioned that a lawyer still may not stand idle if the client is about to enter a prejudicial settlement (DR 7-101(A)(3), EC 7-8) or is defrauding the adversary (DR 7-102(A)(7), (B)(1)); in those cases the lawyer should seek the client's permission to involve opposing counsel and, if refused, may have to withdraw under DR 2-110(C). It advised, as a matter of prudence, urging the client to notify opposing counsel that party-to-party discussions are occurring.

Currency note

This opinion was issued in 1991, before New York replaced the Code of Professional Responsibility (the Disciplinary Rules cited here) with the New York Rules of Professional Conduct, effective April 1, 2009. The no-contact rule now appears as Rule 4.2, and the ABA and New York approaches to client-to-client contact have continued to develop. 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: Can a lawyer tell a client to call the opposing party directly to settle?

A: The committee concluded a lawyer may not advise or encourage a client to communicate directly with a represented adverse party without counsel's consent, because the lawyer's client counts as "another" under DR 7-104(A)(1).

Q: What counts as "causing" the client to make contact?

A: The committee read it broadly to include suggesting, recommending, encouraging, or endorsing the contact, even when the client first raises it, if the lawyer's words are a material factor in the client's decision.

Q: Does the lawyer have to stop a client who decides to contact the other side alone?

A: No. The committee concluded a lawyer need not discourage or interfere with a client-initiated communication and may tell the client it is not prohibited, while noting the lawyer cannot assist in the resulting negotiations absent opposing counsel's consent.

Q: Can the lawyer ever ignore what the client is doing in those talks?

A: The committee cautioned the lawyer still must act if the client is about to enter a prejudicial settlement or is defrauding the adversary, and may have to seek to involve opposing counsel or withdraw.

Background and rules framework

The opinion applied New York Code DR 7-104(A)(1), the no-contact rule, together with DR 7-101(A) (zealous representation and not prejudicing the client), DR 7-102(A)(7) and (B)(1) (no assisting fraud; rectifying or revealing client fraud), and DR 2-110(C) (permissive withdrawal). The analysis corresponds to ABA Model Rule 4.2 (communication with a person represented by counsel), whose comment notes that the parties themselves may communicate directly.

Citations and references

Rules of Professional Conduct:

• New York Code DR 7-104(A)(1), DR 7-101(A), DR 7-102(A)(7), DR 7-102(B)(1), DR 2-110(C) (applied in the opinion)
• MR 4.2 (communication with person represented by counsel)

Cases:

• Raabe v. Universe Tankships, 263 F. Supp. 786 (S.D.N.Y. 1966), parties' right to settle without their attorneys
• In re Marietta, 569 P.2d 921 (Kan. 1977), discipline for using the client to reach a represented adversary

Other opinions cited:

• ABA Formal Op. 75 (1932), withdrawn by ABA Formal Op. 84-350 (1984): the former duty to dissuade client-initiated contact
• N.Y. City 81-29 (1981); N.Y. State 463 (1977): the no-contact rule admits no exceptions

See also

• NYC Bar Formal Op. 1991-4: Ex Parte Contact With a Government Agency Adversary
• NYC Bar Formal Op. 1995-13: Non-Reporting Agreements in Civil Settlements

Source

• Landing page: https://www.nycbar.org/reports/formal-opinion-1991-2/