Can a lawyer let their own client talk directly with the opposing party about settlement when that party is represented by counsel?

Plain-English summary

Lawyer A represents Client A, who opposes Client B in litigation; Client B is represented by Lawyer B. Client A wants to negotiate a settlement directly with Client B. The opinion asks whether Lawyer A may allow Client A to negotiate directly with the represented Client B about the matter, and answers yes, qualified.

The opinion applies Oregon RPC 4.2, which bars a lawyer from communicating, or causing another to communicate, about the subject of the representation with a person the lawyer knows to be represented. It reasons that to fall within the prohibition, the communication, or the direction to communicate, must originate with Lawyer A. Lawyer A has no duty to prohibit voluntary communications between Client A and Client B; the clients have a right to speak directly to each other that the lawyer may not abridge, citing OSB Formal Ethics Op. No. 2005-6 and ABA Formal Ethics Op. No. 95-396.

The opinion sets the limit: even if Client A initiates the contact with the represented Client B, Lawyer A must not instruct Client A to convey a particular message, because Oregon RPC 8.4(a) provides that a lawyer cannot violate the Rules of Professional Conduct through the acts of another, citing In re Murray.

In practice

The opinion holds that the Oregon RPC 4.2 no-contact rule reaches communications that originate with or are directed by the lawyer, not party-to-party contact the clients choose to have. Per the opinion, the analysis turns on who originates the message: a lawyer may permit the clients to talk, but may not use the client as a conduit to deliver the lawyer's message, which Oregon RPC 8.4(a) prohibits as a violation through the acts of another. Verify the current text of Oregon RPC 4.2 and 8.4 before relying on any specific point.

Common questions

Q: Can a lawyer let their client talk settlement directly with the other side when the other side has a lawyer?

A: Yes, qualified. The opinion concludes Oregon RPC 4.2 restricts communications originating with the lawyer, not voluntary contact between the parties, and the lawyer has no duty to prohibit the clients from speaking directly.

Q: Can the lawyer tell the client what to say to the represented party?

A: No. The opinion concludes that instructing the client to convey a particular message would violate Oregon RPC 4.2 through the acts of another, which Oregon RPC 8.4(a) prohibits.

Q: Do the parties themselves violate any rule by talking directly?

A: No. The opinion states the clients have a right to speak directly to each other that the lawyer may not abridge; Rule 4.2 governs the lawyer's conduct, not the parties'.

Background and rules framework

The opinion interprets Oregon RPC 4.2 (communication with a represented person), corresponding to Model Rule 4.2, together with Oregon RPC 8.4(a) (a lawyer may not violate the rules through the acts of another), corresponding to Model Rule 8.4(a).

Citations and references

Rules of Professional Conduct:

• Oregon RPC 4.2 / Model Rule 4.2 (communication with represented persons; lawyer-originated contact)
• Oregon RPC 8.4(a) / Model Rule 8.4(a) (violating the rules through the acts of another)

Cases:

• In re Murray, 287 Or 633, 601 P2d 780 (1979)

Other opinions cited:

• OSB Formal Ethics Op. No. 2005-6 (rev 2026) (communicating with represented persons)
• ABA Formal Ethics Op. No. 95-396

See also

• OSB Ethics Op. 2005-6: Communicating With Represented Persons
• OSB Ethics Op. 2005-142: Contacting a Represented Criminal Witness
• OSB Ethics Op. 2005-144: Obtaining Public Records From a Represented Public Body

Source

• Landing page: https://www.osbar.org/ethics/toc.html
• Original PDF: https://www.osbar.org/_docs/ethics/2005-147.pdf