Opposing counsel has stopped responding to calls and letters, his mail is coming back undeliverable, and his own former client just told me it's fine to talk to me directly. Can I contact the defendant, and what should I do about serving documents?

Plain-English summary

An attorney asked the panel what steps she should take to contact opposing counsel after Attorney X, who had entered his appearance for the defendant, became unreachable. Several weeks after filing suit, her phone calls to Attorney X went unreturned, and he failed to respond to calls or letters for months. Letters sent to Attorney X at the address on file with the Rhode Island Bar Association were returned undeliverable, and certified mail to that address was returned unclaimed. When the inquiring attorney contacted Attorney X's former office, she learned he was no longer a partner there, had taken all his cases, and had left no forwarding address. The defendant himself told the inquiring attorney, "Attorney X said it was alright for me to talk to you."

The panel quoted Rule 4.2, which bars a lawyer from communicating about the subject of a representation with a party known to be represented by another lawyer, unless the lawyer has the consent of the other lawyer or is authorized by law to do so. The panel held the proper course of action is for the inquiring attorney to continue mailing documents to both the defendant and to Attorney X at his last known address, an approach proper until the defendant advises he has discharged Attorney X and retained new counsel, or Attorney X himself provides a new address. The panel found this circumstance properly falls within Rule 4.2's exception for communication authorized by law. The panel commended the inquiring attorney's diligent, ongoing, and varied attempts to contact opposing counsel, noted that the defendant had known for at least six weeks that his attorney was unreachable and could have discharged him and retained new counsel, and concluded that requiring the inquiring attorney to take further steps to find Attorney X, or to refrain from further pursuing her client's rights, would be inconsistent with the purpose of the Rules of Professional Conduct, which the Rhode Island Supreme Court has described as rules of reason designed to further the efficient and equitable administration of justice, citing the Preamble and Scope of the Rules of Professional Conduct, Sup. Ct. R. 47.

Currency note

This opinion was issued in July 1989, after the Rhode Island Supreme Court adopted the Model Rules of Professional Conduct effective November 15, 1988, and it applies Rule 4.2 as originally adopted. The Rhode Island Supreme Court later revised the Rules of Professional Conduct in 2007 as part of the nationwide Ethics 2000 process. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule mentioned here.

Common questions

Q: What should I do if opposing counsel stops responding and my mail to him is returned undeliverable?

A: According to this opinion, the attorney should continue mailing documents to both the defendant and to opposing counsel at his last known address, until the defendant advises he has retained new counsel or opposing counsel provides a new address.

Q: Does Rule 4.2 allow me to keep sending documents to the represented party directly under these facts?

A: The panel found that continuing to mail documents to both the defendant and Attorney X's last known address falls within Rule 4.2's exception for communication authorized by law, given the attorney's diligent, ongoing, and varied attempts to reach opposing counsel.

Q: Is there a point where I have to stop trying to pursue my client's case because opposing counsel disappeared?

A: No, according to the opinion. The panel held that requiring the inquiring attorney to take further steps to search for opposing counsel, or to refrain from pursuing her client's rights, would be inconsistent with the purpose of the Rules of Professional Conduct.

Background and rules framework

The opinion applies Rule 4.2 of the Rhode Island Rules of Professional Conduct, as adopted effective November 15, 1988, governing communication with a person represented by counsel, to an attorney's continued mailing of case documents to both a represented defendant and the defendant's attorney of record after that attorney became unreachable.

Citations and references

Rules of Professional Conduct:

• MR 4.2 (communication with person represented by counsel)
• RI RPC 4.2, as adopted November 15, 1988

Statutes:

• None cited.

Cases:

• None cited.

Other opinions cited:

• None cited.

See also

• RI EAP Opinion 2002-01: Duty to a Former Client After Termination, and Rule 4.2 Contact Restrictions
• RI EAP Opinion 2000-09: Direct Contact With State Agency Employees Under Rule 4.2

Source

• Landing page: https://www.courts.ri.gov/attorney-resources/Pages/Ethics-Advisory-Panel-default.aspx
• Original PDF: https://www.courts.ri.gov/Opinions/EAP%2089-18.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain; the linked PDF is authoritative.

DIGEST OF ETHICS ADVISORY PANEL OPINION

89-18, Request #64

Issued July 20, 1989

An attorney seeks Panel advice concerning what steps she should take to contact opposing counsel under the circumstances she describes. The attorney advises the Panel that after she filed suit on behalf of the client, Attorney X entered his appearance on behalf of the defendant. The inquiring attorney states that when she attempted to reach Attorney X by phone several weeks later, her calls were not returned and that Attorney X failed to respond either to calls or letters during the next few months. The attorney states that letters sent to Attorney X at the address furnished by the Rhode Island Bar Association were returned as undeliverable. The attorney adds that certified mail sent to this address was returned unclaimed. The inquiring attorney states that she contacted Attorney X's office and was informed that Attorney X was no longer a partner, had taken all his cases with him and had left no forwarding address. The inquiring attorney states that the defendant told her "Attorney X said it was alright for me to talk to you."

Rule 4.2, "Communication with Person Represented by Counsel" provides:

In representing a client, a lawyer shall not communicate about the subject of the representation with a party the lawyer knows to be represented by another lawyer in the matter unless the lawyer has the consent of the other lawyer or is authorized by law to do so.

The Panel takes the position that the proper course of action is for the inquiring attorney to continue to mail documents to both the defendant and to Attorney X at Attorney X's last known address. This approach is proper until such time as the defendant advises the inquiring attorney that he has discharged Attorney X and retained new counsel or until Attorney X himself provides the inquiring attorney with a new address. The Panel finds that this is one circumstance which properly falls within the exception to the prohibition against communication with a person represented by counsel, set out in the final line of Rule 4.2 quoted above.

In rendering this opinion the Panel first notes with approval the inquiring attorney's diligent, ongoing and varied attempts to contact opposing counsel. The Panel notes that the defendant knew for a period of at least six weeks that the inquiring attorney was unable to contact his attorney, and could have discharged Attorney X and retained new counsel had he chosen. To require the inquiring attorney to take any further steps in her search for Attorney X or to refrain from taking any further steps in pursuit of her client's rights would be inconsistent with the purpose of the Rules of Professional Conduct. The Rhode Island Supreme Court has stated that the Rules of Professional Conduct are rules of reason, designed to further the efficient and equitable administration of justice. See Preamble and Scope, Rules of Professional Conduct, Sup. Ct. R. 47.

Ethics Advisory Panel advice is protective in nature. There is no requirement that an attorney abide by a Panel opinion, but if he or she does, he or she is fully protected from any charge of impropriety.