Can an Oregon lawyer give advice or a recommendation to an unrepresented opposing person, like an adverse driver or a grand-jury witness?
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This page answers the general question as of 2026. Ezel answers yours: whether it's allowed on your facts, under the current Oregon Rules of Professional Conduct, with citations.
Plain-English summary
The opinion addresses two proposed communications. Lawyer A, for an injured client, wants to write the adverse driver (not known to be represented) urging the driver to instruct an insurer to accept a policy-limits demand. Lawyer B, for a criminal defendant, wants to advise a subpoenaed grand-jury witness (who may be implicated and whose counsel status is unknown) to assert the Fifth Amendment. The question is whether either lawyer may make the proposed communication. The conclusion is no.
The opinion explains that Oregon RPC 4.2, the no-contact rule, does not apply because neither lawyer knows the person is represented on the same or a related matter. But Oregon RPC 4.3 does apply. Under RPC 4.3, a lawyer dealing with an unrepresented person may not state or imply that the lawyer is disinterested, must correct a known misunderstanding of the lawyer's role, and may not give legal advice other than the advice to secure counsel when the lawyer knows or should know the person's interests are or have a reasonable possibility of conflicting with the client's.
The opinion concludes the proposed conduct of both lawyers would clearly violate RPC 4.3, because each lawyer would be giving substantive advice or a recommendation to an unrepresented person whose interests conflict with the client's.
In practice
The opinion holds that the analysis of contacting a non-client turns first on whether the person is known to be represented (RPC 4.2) and, if not, on the unrepresented-person rule (RPC 4.3). The opinion treats a lawyer's recommendation to an adverse unrepresented person, beyond advising them to get their own counsel, as barred by RPC 4.3 where the person's interests conflict with the client's.
Common questions
Q: Can a lawyer write the unrepresented opposing party urging a settlement step?
A: No, where their interests conflict. The opinion concludes RPC 4.3 bars giving legal advice other than to secure counsel to an unrepresented person whose interests conflict with the client's.
Q: Does the no-contact rule apply if the lawyer does not know the person has counsel?
A: No. The opinion concludes RPC 4.2 does not apply when the lawyer does not know the person is represented on the matter, but RPC 4.3 still governs.
Q: Can a defense lawyer tell an unrepresented witness to take the Fifth?
A: No, on these facts. The opinion concludes advising a subpoenaed witness with possibly adverse interests to assert the privilege would violate RPC 4.3.
Background and rules framework
The opinion interprets Oregon RPC 4.3 (dealing with an unrepresented person), distinguishing it from RPC 4.2 (the no-contact rule for represented persons). These track Model Rules 4.3 and 4.2.
Citations and references
Rules of Professional Conduct:
- Oregon RPC 4.3 / Model Rule 4.3 (unrepresented persons)
- Oregon RPC 4.2 / Model Rule 4.2 (represented persons)
Cases:
- In re Bauer, 283 Or 55, 581 P2d 511 (1978)
- In re Jeffery, 321 Or 360, 898 P2d 752 (1995)
See also
- OSB Ethics Op. 2005-6: Communicating With Represented Persons
- ABA Formal Op. 95-396: Communications With Represented Persons
Source
- Landing page: https://www.osbar.org/ethics/toc.html
- Original PDF: https://www.osbar.org/_docs/ethics/2005-16.pdf
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