Before filing suit, can an Oregon lawyer (or an investigator) contact a prospective defendant, take an affidavit, and negotiate a settlement?

Plain-English summary

A lawyer is asked to represent a prospective plaintiff against a prospective defendant. Before filing suit, the lawyer would like to speak with the prospective defendant, or have an investigator do so. The opinion asks whether the lawyer may speak to the prospective defendant, draft an affidavit of the defendant's statement, and negotiate and draft a settlement agreement.

The opinion concludes yes to all three, qualified. It starts from Oregon RPC 4.2, which bars communicating about the subject of the representation with a person the lawyer knows to be represented by counsel on that subject. Because the lawyer does not know the prospective defendant has retained counsel in the matter, RPC 4.2 is not implicated, even if the lawyer believes the defendant likely will have counsel once suit is filed. So the lawyer or the investigator may speak with the prospective defendant and may draft an affidavit commemorating the statement.

The opinion then applies RPC 4.3 (dealing with an unrepresented person): the lawyer must not state or imply that the lawyer is disinterested, must correct any misunderstanding of the lawyer's role, and must not give legal advice (other than to secure counsel) where the unrepresented person's interests conflict or may conflict with the client's. As long as the lawyer abides by RPC 4.3, the lawyer may negotiate a settlement. Once the prospective defendant obtains counsel, the opinion concludes the lawyer must communicate through that counsel to seek an affidavit or negotiate.

In practice

The opinion holds that RPC 4.2 keys on actual knowledge of representation, so contact with a not-yet-represented prospective defendant is permissible even if representation is anticipated. Per the opinion, the governing constraint is RPC 4.3: no implying disinterest, correcting any misunderstanding of the lawyer's role, and giving no legal advice beyond "get a lawyer" when interests conflict. Once the person retains counsel, communication must go through counsel.

Common questions

Q: Can a lawyer contact a prospective defendant before filing suit?

A: Yes, qualified. The opinion concludes RPC 4.2 is not triggered because the lawyer does not know the prospective defendant is represented, even if representation is likely once suit is filed.

Q: Can the lawyer or an investigator take the prospective defendant's affidavit?

A: Yes, qualified. The opinion concludes that, absent knowledge of representation, the lawyer or the lawyer's investigator may take an affidavit, subject to RPC 4.3.

Q: What must the lawyer avoid when dealing with the unrepresented person?

A: The opinion concludes that under RPC 4.3 the lawyer must not imply being disinterested, must correct misunderstandings of the lawyer's role, and must not give legal advice (other than to get counsel) where interests conflict.

Background and rules framework

The opinion interprets Oregon RPC 4.2 (communication with a represented person, which turns on the lawyer's actual knowledge of representation) and RPC 4.3 (dealing with an unrepresented person). These track Model Rules 4.2 and 4.3.

Citations and references

Rules of Professional Conduct:

• Oregon RPC 4.2 / Model Rule 4.2 (communication with a represented person)
• Oregon RPC 4.3 / Model Rule 4.3 (dealing with an unrepresented person)

Cases:

• In re Jeffery, 321 Or 360, 898 P2d 752 (1995)
• Bohn v. Cody, 119 Wash 2d 357, 832 P2d 71 (1992)

Other opinions cited:

• OSB Formal Op. 2005-6 and 2005-16: scope of RPC 4.2 and dealing with unrepresented persons

See also

• OSB Ethics Op. 2005-16: Communicating With Unrepresented Persons
• OSB Ethics Op. 2005-6: Communicating With Represented Persons

Source

• Landing page: https://www.osbar.org/ethics/toc.html
• Original PDF: https://www.osbar.org/_docs/ethics/2005-42.pdf