May a plaintiff's lawyer write directly to a represented defendant about the case without the defense lawyer's knowledge?

Plain-English summary

The inquiry described a tort suit in which the defendant carried liability insurance, and the insurer assigned counsel to defend the insured in the insured's name. After the defense filed an answer and the issues were made up, plaintiff's counsel sent a letter directly to the defendant, without the knowledge or consent of the defendant's attorney of record. The letter discussed the case, its trial, its probable outcome, and the defendant's probable ultimate liability.

The committee concluded such conduct violates Canon 9, which provides that a lawyer should not communicate on the subject of the controversy with a party represented by counsel, much less negotiate or compromise with that party, but should deal only with the party's counsel. Quoting Drinker's Legal Ethics, it described the Canon's aim as preserving the proper functioning of the profession and shielding the adverse party from improper approaches. It noted that California had disciplined an attorney for negotiating directly with a represented opposing party, citing Carpenter v. State Bar of California.

Currency note

This opinion was issued in 1954, decades before Oklahoma replaced its original Rules of Professional Conduct (patterned on the ABA Canons of Professional Ethics) with the Oklahoma Rules of Professional Conduct (adopted 1988) and the later Ethics 2000 revisions. The no-contact principle survives in modern law as Rule 4.2, but the current rule is stated and applied differently than Canon 9. Treat this page as historical context, not current guidance.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: Could the plaintiff's lawyer write directly to the represented defendant?

A: No. The committee concluded that writing the represented defendant directly about the case, without the defense lawyer's knowledge or consent, violated Canon 9.

Q: Did it matter that the defense lawyer was hired by the insurer?

A: No. The defendant was the party of record and was represented by counsel of record, so under Canon 9 the plaintiff's lawyer had to deal only with that counsel.

Q: What did the committee say the Canon was meant to accomplish?

A: Quoting Drinker, it said the Canon's aim was to preserve the proper functioning of the legal profession and to shield the adverse party from improper approaches.

Background and rules framework

The opinion applied Canon 9 of the Canons of Professional Ethics, adopted in Oklahoma, barring communication with a party known to be represented by counsel on the subject of the controversy. The opinion predates the Model Rules and made no Model Rule citation.

Citations and references

Rules of Professional Conduct:

• Canon 9 (ABA Canons of Professional Ethics, adopted by the Oklahoma Bar): a lawyer should not communicate on the subject of the controversy with a party represented by counsel, but should deal only with that counsel.

Cases:

• Carpenter v. State Bar of California, 210 Cal. 520, 292 P. 450, attorney disciplined for negotiating directly with a represented opposing party

Other authorities:

• Henry S. Drinker, Legal Ethics, p. 202

See also

• Okla. Bar Ethics Op. 178: A lawyer's duty when the administrator-client conceals estate assets
• Okla. Bar Ethics Op. 172: Municipal judge practicing law and the firm name

Source

• Landing page: https://www.okbar.org/ethics/ethics-opinion-no-177/

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

Adopted August 4, 1954

QUERY

A lawsuit having been filed, arising out of tort, wherein the Defendant carries liability insurance, case is referred to an attorney employed by the liability insurer, to defend on behalf of and in the name of the insured, the Defendant in the action. The Attorney of record for the Defendant filed an Answer. After the issues had been made up, the Attorneys for the Plaintiff direct a letter to the Defendant personally, without the knowledge or consent of the Attorney of record for the Defendant. Needless to say, the letter being sent direct to the Defendant pertains to the case, its trial, its probable outcome, and to the probable ultimate liability of the Defendant.

Is this ethical?

ANSWER

Such conduct on the part of a lawyer as described above is in indirect violation of Canon 9, which reads as follows:

“A lawyer should not in any way communicate upon the subject of controversy with a party represented by counsel; much less should he undertake to negotiate or compromise the matter with him, but should deal only with his counsel. It is incumbent upon the lawyer most particularly to avoid everything that may tend to mislead a party not represented by counsel, and he should not undertake to advise him as to the law.”

Drinker’s Legal Ethics at page 202 says:

“The ‘wise and beneficent’ aim of the Canon has been said to be to ‘preserve the proper functioning of the legal profession as well as to shield the adverse party from improper approaches.”‘

California disciplined an attorney for negotiating directly with an opposing party who was represented by an attorney. See Carpenter v. State Bar of California, 210 Cal. 520, 292 P. 450.