Can an Oregon lawyer contact the opposing party directly, or have a client or investigator do it, when that party has a lawyer?

Plain-English summary

The opinion addresses lawyers engaged in negotiation and litigation against parties who are represented by counsel. The question is whether, absent opposing counsel's consent, any of these lawyers may communicate about the matter with the opposing party, or cause their clients or others such as investigators or claims adjusters to do so, in person or in writing.

The opinion concludes no. It applies Oregon RPC 4.2, which bars a lawyer, in representing a client or the lawyer's own interests, from communicating or causing another to communicate about the subject of the representation with a person the lawyer knows to be represented, unless the lawyer has the represented person's lawyer's prior consent, is authorized by law or court order, or is acting under a written agreement requiring notice (with a copy to the other lawyer).

The opinion notes two qualifications. First, RPC 4.2 does not prohibit communications between the parties themselves, and does not stop a lawyer from answering a client's question about whether the client may contact the represented person; what is barred is the lawyer's initiation of such communications. Second, some direct communications may be proper under the authorized-by-law provision, citing statutes such as ORS 20.080(1) and ORS 18.265(1)(a) and ORCP 7 D for service of process, but the opinion states the authorized-by-law exception will be narrowly construed.

In practice

Under this opinion, an Oregon lawyer opposite a represented party routes substantive contact through that party's counsel. The opinion holds that the bar reaches not just the lawyer's own contact but contact the lawyer causes a client, investigator, or adjuster to make, while leaving the parties free to speak directly and leaving a narrow authorized-by-law exception that the opinion reads narrowly.

Common questions

Q: Can an Oregon lawyer email or call the opposing party directly when that party has a lawyer?

A: No. The opinion concludes RPC 4.2 bars a lawyer from communicating about the matter with a represented opposing party without that lawyer's consent or another exception.

Q: Can a lawyer have an investigator or the client make the contact instead?

A: No. The opinion concludes RPC 4.2 bars the lawyer from causing a client, investigator, or adjuster to make the communication the lawyer could not make directly.

Q: Does the rule stop the clients from talking to each other?

A: No. The opinion concludes RPC 4.2 does not prohibit communications between the parties themselves and lets a lawyer answer a client's question about whether the client may contact the represented person; only the lawyer's initiation of contact is barred.

Background and rules framework

The opinion interprets Oregon RPC 4.2 (the no-contact rule), which tracks Model Rule 4.2. It references the authorized-by-law exception in statutes including ORS 20.080(1), ORS 18.265(1)(a), and ORCP 7 D on service of process.

Citations and references

Rules of Professional Conduct:

• Oregon RPC 4.2 / Model Rule 4.2 (communication with represented persons)

Statutes and rules:

• ORS 20.080(1); ORS 18.265(1)(a); ORCP 7 D (authorized-by-law communications)

Cases:

• In re Schenck, 320 Or 94, 879 P2d 863 (1994)
• In re Murray, 287 Or 633, 601 P2d 780 (1979)

See also

• ABA Formal Op. 95-396: Communications With Represented Persons
• ABA Formal Op. 502: Contact by a Pro Se Lawyer
• ABA Formal Op. 503: Reply All in Electronic Communications

Source

• Landing page: https://www.osbar.org/ethics/toc.html
• Original PDF: https://www.osbar.org/_docs/ethics/2005-6.pdf