May a lawyer write directly to a town board that is represented by counsel to criticize its decision to appeal his case?

Plain-English summary

An attorney forwarded to the association a letter written by a fellow attorney to the president and members of a town's Board of Trustees. The letter criticized the board for proceeding with an appeal in a condemnation case in which the writing attorney had successfully represented the plaintiff against the municipality in district court, asserting that a representative of the board had indicated the town would abide by the district court's judgment. The complaining attorney had represented the board in the litigation. The committee was asked whether the conduct violated the canons.

The committee held that writing directly to the Town Board of Trustees violated Canon 9, which provides that a lawyer should not communicate on the subject of a controversy with a party represented by counsel and should deal only with that party's counsel. It said the fact that the defendant is a public body in no way alters the situation. Before litigation, the attorney could properly have appeared before the trustees in their official capacity about any complaint, but once litigation had commenced his contact with the adversary should at all times be through the adversary's counsel, even where the adversary is a municipality or other governmental agency. The committee added that it did not suggest a public body should be protected from criticism; the proper course would have been for the plaintiff's attorney to write the board's counsel asking to present his complaint to the board in the presence of their counsel.

Currency note

This opinion was issued in 1961, 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 of Canon 9 corresponds to later Model Rule 4.2, but subsequent rule amendments or opinions may have refined the analysis, including how the rule applies to government bodies. Treat this page as historical context, not current guidance.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 lawyer write directly to the town board about the appeal?

A: No. The committee held that writing directly to the represented board violated Canon 9, which requires dealing with a represented party only through its counsel.

Q: Did it matter that the adversary was a public body?

A: No. The committee said the fact that the defendant is a public body in no way alters the situation.

Q: How could the lawyer have raised his complaint properly?

A: The committee said he should have written the board's counsel asking to present his complaint to the board in the presence of their counsel.

Background and rules framework

The opinion applied Canon 9 of the Canons of Professional Ethics, adopted in Oklahoma, which bars communicating with a represented party about the controversy and requires dealing only with that party's counsel, to a lawyer's direct letter to an opposing municipal board during litigation. Canon 9 is the predecessor of later Model Rule 4.2. 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 and should deal only with that party's counsel.

See also

• Okla. Bar Ethics Op. 200: City attorney's firm appearing before the city council
• Okla. Bar Ethics Op. 210: A finance company financing its debtor's bankruptcy

Source

• Landing page: https://www.okbar.org/ethics/ethics-opinion-no-212/

Original opinion text

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

Adopted September 15, 1961

An attorney in the state has forwarded to the Association a copy of a letter written by a fellow attorney to the president and members of the Town Board of Trustees of a state town. The letter, in effect, is critical of the action of the Town Board in proceeding with an appeal in connection with a condemnation case in which the attorney successfully represented the plaintiff against the municipality in the district court. It would appear that the attorney contends that some representative of the Town Board of Trustees had indicated to said attorney or his client that the Town would abide by the judgment of the district court. The letter is one of criticism for failure so to do. The complaining attorney represented the Board of Trustees in connection with the litigation.

INQUIRY

Is such action by an attorney such that would constitute a violation of the canons of professional ethics?

OPINION

The action of the attorney in writing directly to the Town Board of Trustees constitutes a violation of Canon 9 of the Canons of Professional Ethics of the American Bar Association, 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.”

The mere fact that in this instance the defendant is a public body in no way alters the situation. Prior to the commencement of litigation the attorney in question could have properly appeared before the Trustees in their official capacity in connection with any complaint he or his client might have. However, once litigation has been commenced, we are of the opinion that his contact with the adversary should at all times be through counsel for the adversary, even though it be a municipality or other governmental agency.

This Opinion does not intimate that the Town Board or any public body should be protected from criticism. The proper procedure in the instant case would have been for the plaintiff’s attorney to write to counsel for the Town Board asking that he be permitted to present his complaint to the Board in the presence of their counsel.