Opposing counsel represents both my adversary and the party whose insurer is funding the settlement, and he won't tell his own client what the insurance company is offering. Can I contact her directly to explain her rights since he won't?

Plain-English summary

The inquiring attorney sued a real estate salesperson, among others, over his clients' attempted purchase of a new home: the salesperson had obtained the listing for his clients' old home and connected his clients with a contractor for a new home, and after the old home sold, the contractor defaulted for reasons the attorney alleges the salesperson knew or should have known, leaving his clients homeless. The salesperson is represented by "Lawyer L," who was formerly with the firm representing the real estate office that employed the salesperson; the dispute was referred to the real estate office's errors-and-omissions insurer, and the real estate office has since retained Lawyer L to represent its own interests, while Lawyer L still purports to represent the salesperson too. The attorney made a $15,000 settlement demand and received a $12,000 counteroffer apparently from the insurer; when he asked Lawyer L whether the salesperson had been told the insurer was refusing to pay the $3,000 difference, Lawyer L refused to say. The attorney, believing the salesperson has far greater liability than she may realize as a layperson and that she ought to know her rights, asked the panel whether he could contact her directly to explain them if Lawyer L would not.

The panel quoted Rule 4.2, which bars a lawyer representing a client from communicating about the subject of the representation with a party the lawyer knows to be represented by another lawyer in the matter, absent that lawyer's consent or legal authorization, and held that Rule 4.2 bars the inquiring attorney from contacting the salesperson directly absent Lawyer L's consent, no matter how laudable his motive. The panel then discussed Rule 8.3's mandatory reporting requirement and In re Himmel, in which the Illinois Supreme Court suspended an attorney for one year for failing to report unprivileged information about another attorney's misconduct, a case in which Himmel had negotiated a settlement with the attorney who had converted his client's funds and, at his client's instruction, did not report the misappropriation. The panel stated that its rules do not empower it to rule on the propriety of conduct by an attorney other than the inquiring attorney, and that its "single party procedure" cannot resolve contested fact questions such as what Lawyer L did or did not do, citing its own digest of Advisory Opinion 89-7. The panel noted the information the attorney communicated to it about Lawyer L's conduct was not obtained from his own clients and so is not protected by attorney-client privilege, and held that if the attorney reasonably believes Lawyer L's conduct rose to the requisite level of seriousness, Rule 8.3 obligates him to report it; if he does not reasonably believe that, he is under no obligation to report it.

Currency note

This opinion was issued in January 1990, after the Rhode Island Supreme Court adopted the Model Rules of Professional Conduct effective November 15, 1988, and it applies Rules 4.2 and 8.3 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: Can I contact an opposing party directly if I believe her own lawyer is withholding important information from her?

A: No, according to this opinion. The panel held that Rule 4.2 bars the inquiring attorney from contacting the represented salesperson directly absent her lawyer's consent, no matter how laudable the attorney's motive.

Q: Will the panel decide whether opposing counsel actually violated the rules based on my account of what happened?

A: No. The panel stated its rules do not empower it to rule on the propriety of conduct by an attorney other than the inquiring attorney, and that its single-party procedure cannot resolve contested fact questions such as what the other lawyer did or did not do.

Q: Am I required to report opposing counsel's conduct to disciplinary authorities?

A: The opinion frames the answer as depending on the attorney's own reasonable belief: if he reasonably believes Lawyer L's conduct rose to the requisite level of seriousness, Rule 8.3 obligates him to report it; if he does not reasonably believe that, he is under no obligation to report it.

Background and rules framework

The opinion applies Rule 4.2 of the Rhode Island Rules of Professional Conduct, as adopted effective November 15, 1988, which bars a lawyer from communicating about the subject of a representation with a party known to be represented by another lawyer absent that lawyer's consent, and Rule 8.3, which requires reporting another lawyer's violation raising a substantial question of honesty, trustworthiness, or fitness, to an inquiry about contacting an opposing party directly and about a related reporting obligation.

Citations and references

Rules of Professional Conduct:

• MR 4.2 (communication with person represented by counsel)
• MR 8.3 (reporting professional misconduct)
• RI RPC 4.2, 8.3(a), 8.3(c), as adopted November 15, 1988

Statutes:

• None cited.

Cases:

• In re Himmel, 533 N.E.2d 790, 125 Ill.2d 531, 127 Ill. Dec. 708 (Ill. 1989), cited for a one-year suspension imposed for failing to report unprivileged information about another attorney's misconduct in converting client funds.

Other opinions cited:

• RI EAP Advisory Opinion 89-7, cited for the panel's "single party procedure" not being equipped to resolve contested fact questions.

See also

• RI EAP Op. 90-04: Reporting Duty, Rule 8.3
• ABA Formal Op. 502: Communication with a Represented Person by a Pro Se Lawyer
• ABA Formal Op. 91-359: Contact With Former Employee of Adverse Corporate Party

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%2090-08.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 #90-8, REQUEST #80
Issued January 18, 1990

An attorney seeks Panel advice as to the proper course of action in the circumstances he describes.

The attorney advises the Panel that he brought suit against a real estate salesperson, among others, in connection with his clients' attempt to purchase a new home. The attorney states that the salesperson obtained a listing for the sale of the home his clients already owned and brought his clients together with a contractor for the construction of a new home. After his clients' old home was sold, the contractor defaulted for reasons the attorney alleges the salesperson knew or should have known. The attorney's clients were left with no home.

The attorney states that the salesperson is being represented by a lawyer, "Lawyer L," who was formerly with the firm representing the real estate office where the salesperson was employed. The attorney indicates that the dispute was referred to the insurance company which had issued an Errors and Omissions policy to the real estate office. The real estate office has now retained Lawyer L to represent its interests. The attorney notes that Lawyer L still purports to represent the salesperson.

The attorney advises the Panel that he made a demand to settle the case for $15,000, and has received an offer of $12,000 which apparently comes from the insurance company. The attorney states that he asked Lawyer L whether he has told the salesperson that the insurance company is refusing to pay the $3,000 difference between the attorney's demand and its offer. The attorney indicates that Lawyer L refuses to tell him. The attorney describes other aspects of the case to the Panel which suggest that the salesperson has far greater liability than she, as a layperson, may realize. The attorney states that the salesperson ought to be made aware of her rights. The attorney asks whether he may contact the salesperson to explain these rights to her if Lawyer L does not.

Rule 4.2, entitled "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 Rule 4.2 bars you from contacting the salesperson directly absent Lawyer L's consent no matter how laudable your motive.

Rule 8.3, entitled "Reporting Professional Misconduct" provides, in pertinent part:

(a) A lawyer having knowledge that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer's honesty, trustworthiness or fitness as a lawyer in other respects shall inform the appropriate professional authority.

(c) This rule does not require disclosure of information otherwise protected by Rule 1.6.

In In re Himmel, 125 Ill.2d 531, 127 Ill. Dec. 708, 533 N.E.2d 790 (1989) the Illinois Supreme Court had occasion to review the implications of the concept embodied in Rule 8.3. In Himmel, Attorney Himmel was hired to assist a client in recovering funds due her and wrongfully converted by her previous attorney. Himmel negotiated an agreement with this attorney under which the attorney agreed to pay Himmel's client a substantial sum of money in exchange for the client's agreement not to pursue any claims she might have against the attorney for misappropriation of her funds. Himmel later testified that the client had instructed him not to report the misappropriation of funds to the disciplinary authorities. When the first attorney defaulted on the agreement, Himmel filed suit against him, and the entire situation was ultimately subjected to the scrutiny of the disciplinary authorities and the state supreme court.

The court found that a one year suspension imposed on Himmel for failing to report unprivileged information concerning another attorney's misconduct was appropriate. The court stressed that a lawyer is an officer of the court and as such must uphold its rules. The court noted that an attorney's failure to report misconduct under the circumstances constituted interference with the administration of justice.

The Panel's Rules do not empower it to rule on the propriety of attorney conduct other than that of the inquiring attorney. The Panel has also taken the position that its "single party procedure" is not equipped to resolve contested fact questions such as the question of which actions Lawyer L did or did not take. See digest of advisory opinion 89-7. The Panel thus cannot advise the attorney as to whether the principles enunciated in Himmel require him to report Lawyer L's conduct to the disciplinary authorities or not. The fact remains, however, that the information the attorney has communicated to the Panel concerning Lawyer L's conduct was not obtained from his clients, and is not protected by the attorney-client privilege. See 8 J. Wigmore, Evidence 2292.

The Panel takes the position that if the attorney reasonably believes that the conduct of the opposing counsel rose to the level of seriousness outlined above, Rule 8.3 obligates the attorney to report it to the disciplinary authorities. If, however, the attorney does not reasonably believe that the conduct rose to the requisite level of seriousness then the Panel takes the position that the attorney is under no obligation to report it to the disciplinary authorities.

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.