At a real estate closing, can the buyer's lawyer discuss the sale with the seller before the seller's lawyer arrives?
Ohio BPC Opinion 88-032: Communicating With a Represented Party at a Closing
Short answer: The Board concluded that former DR 7-104(A)(1) bars communicating with a represented party on the subject of the representation, but communications truly unrelated to the representation are not violations; because it is hard to tell which are independent, the Board indicated it may be best for the lawyer present to refrain from any conversation even remotely touching the subject matter.
Disclaimer: This is an advisory ethics opinion. Advisory opinions are not binding; they interpret the Ohio Board of Professional Conduct's rules of professional conduct and are persuasive authority. This summary is for research purposes only and is not legal advice. Verify current rules before acting on any specific guidance.
About this page: The plain-English summary and Q&A below were written by Ezel based on the official opinion. The opinion text is reproduced at the bottom; the official source (linked) controls.
Currency note
This opinion was issued in 1988 under the former Ohio Code of Professional Responsibility, which was superseded by the Ohio Rules of Professional Conduct effective February 1, 2007. Treat this page as historical context, not current guidance. Verify against the current Ohio Rules of Professional Conduct (including Ohio Prof. Cond. R. 4.2 on communication with represented persons) before relying on any specific rule mentioned here.
Plain-English summary
A lawyer asked whether, at a real estate closing, the purchaser's attorney violates DR 7-104(A)(1) by initiating or taking part in discussions about matters of the sale before the seller's attorney arrives.
The Board quoted DR 7-104(A)(1), which bars a lawyer, during the representation, from communicating on the subject of the representation with a party known to be represented by counsel in that matter, absent the other lawyer's consent or legal authorization, and noted EC 7-18 and ABA Model Rule 4.2 use substantially similar language. It explained the prohibition's purpose is to shield the adverse party from improper advances and from the opposing lawyer's superior knowledge and skill, and that the restriction pertains to the specific subject matter of the representation; communications about matters outside the representation are not prohibited. Because it can be difficult to determine whether a communication concerns a subject unrelated to the representation, the Board concluded that whether a communication violates the rule is a case-by-case question, and that it may be best for the lawyer present to refrain from any conversation even remotely related to the subject matter of the representation.
Common questions
Q: Can the buyer's lawyer discuss the sale with the seller before the seller's lawyer arrives?
A: Not on the subject of the representation. The Board concluded DR 7-104(A)(1) bars communicating with a represented party about the matter, and indicated it may be best to avoid conversation even remotely touching the subject matter until the other lawyer is present.
Q: Are all conversations with the represented party off-limits?
A: No. The Board explained the rule reaches only the specific subject matter of the representation; communications about unrelated matters are not prohibited, though it can be hard to tell which is which.
Background and rules framework
The opinion applies former DR 7-104(A)(1) and EC 7-18 of the Ohio Code of Professional Responsibility (communicating with a represented party), and treats ABA Model Rule 4.2 as comparable. The current parallel is Ohio Prof. Cond. R. 4.2 and Model Rule 4.2.
Citations and references
Rules of Professional Conduct:
- Former DR 7-104(A)(1), Ohio Code of Professional Responsibility
- Former EC 7-18, Ohio Code of Professional Responsibility
- ABA Model Rule 4.2 (cited as comparable; not adopted in Ohio at the time)
See also
- Ohio BPC Opinion 1988-030: Client Decision-Making Authority and Third-Party Influence
- Ohio BPC Opinion 1988-011: Landlord-Lawyer and No Duty to Notify Tenant's Prior Counsel
Source
- Landing page: https://ohioadvop.org/advisory-opinion-index/
- Original PDF: https://www.ohioadvop.org/wp-content/uploads/2017/03/Op-88-032.pdf
Original opinion text
Reproduced from the official source for research purposes. The linked source is authoritative.
The Supreme Court of Ohio
BOARD OF COMMISSIONERS ON GRIEVANCES AND DISCIPLINE
41 SOUTH HIGH STREET-SUITE 3370, COLUMBUS, OH 43215-6105
(614) 644-5800 FAX: (614) 644-5804
OFFICE OF SECRETARY
OPINION 88-32
Issued December 16, 1988
[CPR Opinion-provides advice under the Ohio Code of Professional Responsibility which is superseded by the Ohio Rules of Professional Conduct, eff. 2/1/2007.]
SYLLABUS: Although DR 7-104(A)(1) states that an attorney shall not communicate on the subject of the representation with a party he knows to be represented by a lawyer in that matter, certain independent communications are not considered in violation of this rule. However, due to the difficulty in determining which communications are deemed independent, it may be in the attorney's best interest to refrain from conversation which even remotely touches upon the subject matter of the representation.
OPINION: We have before us your request for our opinion on the following question: at a real estate closing, is it a violation of DR 7-104(A)(1) for the purchaser's attorney to initiate or take part in discussions regarding matters of the sale, prior to the arrival of the seller's attorney?
DR 7-104(A)(1) states that,
[d]uring the course of his representation of a client a lawyer shall not: ...[c]ommunicate or cause another to communicate on the subject of the 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.
This is further enforced by both Ethical Consideration 7-18 and ABA Model Rule 4.2 in substantially similar language.
The purpose of this blanket prohibition against communication between an attorney and an adverse party was to shield the adverse party from improper advances. Annotated Code of Professional Responsibility, at 332 (1979). Model Rule 4.2, although not binding in Ohio, is intended to protect the adverse party from the "superior knowledge and skill of the opposing lawyer." Annotated Model Rules of Professional Conduct, at 268 (1984).
The restriction on a lawyer's communication to a party represented by another lawyer, which is imposed by DR 7-104(A)(1), pertains to the specific subject matter of the representation. Annotated Code of Professional Responsibility DR 7-104(A)(1), at 333 (1979). Furthermore, Rule 4.2 of the Model Rules does not prohibit a lawyer from communicating with a party concerning matters outside the representation. Annotated Model Rules of Professional Conduct Rule 4.2, at 268 (1984).
Based on the foregoing, it is our opinion that communications between a lawyer and an adverse party, represented by a lawyer who is not present, can only be deemed violative of DR 7-104(A)(1) on a case-by-case basis. As it may be difficult to determine if a communication concerns a subject matter unrelated to the representation, and would therefore not be in violation of the rule, it may be best for the lawyer present to refrain from any conversation even remotely related to the subject matter of the representation.
This is an informal, non-binding advisory opinion based upon the facts presented and limited to questions arising under the Code of Professional Responsibility.