Can a lawyer negotiate and settle a case directly with the opposing party who is represented by another lawyer?

Plain-English summary

Attorney W filed a divorce suit for the husband, C, and the wife first filed a waiver. Attorney G then filed an answer and cross-petition for the wife and secured an order requiring C to pay maintenance and G's attorney's fee. The two attorneys, in conference with C, agreed that C would pay G's fee and the wife's answer and cross-petition would be withdrawn. Afterward, C and his wife settled the case directly, without the knowledge of C's attorney W and in his absence: C paid G's fee, G withheld the maintenance claim, and they appeared in court together and took the decree for the wife. W was a practicing attorney with a telephone, a fact known to G, but G failed to communicate with W. The inquiry asked whether G violated a rule of professional conduct.

The Board of Governors concluded that G's conduct violated Rule 11, 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 the matter with him, but should deal only with that party's counsel. The Board noted that under Section 29 of the State Bar Act, a willful breach is punishable by suspension up to one year.

Currency note

This opinion was issued in 1932, 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 The rule cited here, Rule 11, belongs to that superseded canon-era code; the modern counterpart is the rule on communication with a represented person. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule mentioned here.

Common questions

Q: Could a lawyer settle directly with the opposing party who had a lawyer?

A: The Board concluded no. It held that dealing directly with a represented party about the controversy, rather than through counsel, violated Rule 11.

Q: Did it matter that the opposing lawyer was reachable?

A: The Board noted that W was a practicing attorney with a telephone, known to G, yet G failed to communicate with him, underscoring the violation.

Background and rules framework

The opinion applied Rule 11 of the then-current Oklahoma Rules of Professional Conduct, which barred a lawyer from communicating about the subject of a controversy with a party represented by counsel and required dealing only with that party's counsel. Section 29 of the State Bar Act made a willful breach punishable by suspension. This rule was patterned on the ABA Canons of Professional Ethics in force at the time and is the predecessor of the modern rule on communication with represented persons.

Citations and references

Rules of Professional Conduct:

• Rule 11 (1929 Oklahoma Rules of Professional Conduct): a lawyer should not communicate about the controversy with a party represented by counsel, and should deal only with that party's counsel.

Statutes:

• State Bar Act, Section 29: willful breach of a rule is punishable by suspension up to one year.

See also

• ABA Formal Op. 502: Communication With a Represented Person by a Pro Se Lawyer
• ABA Formal Op. 503: "Reply All" in Electronic Communications
• ABA Formal Op. 472: Communication With a Limited-Scope Client

Source

• Landing page: https://www.okbar.org/ethics/ethics-opinion-no-38/

Original opinion text

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

Adopted October 28, 1932

The Board of Governors is in receipt of a letter asking for an opinion as to the conduct of a member of the bar upon the following state of facts:

"W, an attorney, filed a divorce suit for C (husband). C's wife filed a waiver. Afterward G, an attorney, filed an answer and cross-petition for C's wife and secured an order on C requiring him to pay maintenance and attorney's fees for G. Both attorneys in conference with C agreed that C should pay G's attorney's fee and the wife's answer and cross-petition would be withdrawn. Afterward C and his wife, without knowledge of C's attorney and in his absence, settled the case on the following basis: C paid G's attorney's fee and G withheld his claim for maintenance and they appeared in court together and took the decree for C's wife. W is a practicing attorney with a telephone, which fact was known to G, though G failed to communicate with W."

The inquiry is, is G guilty of violating a rule of professional conduct?

In response:

Rule 11 of the rules of professional conduct provides:

"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."

Accordingly, the conduct of the member of the bar "G" is in violation of Rule 11. Section 29 of the State Bar Act provides that the wilful breach of any rule of professional conduct shall be punished by suspension from the practice of law for a period not to exceed one year.