I think opposing counsel is not passing my settlement offers to the client, an institution with in-house counsel. May I write directly to its in-house counsel, or have my client copy them, under Rule 4.2?

Plain-English summary

The inquiring attorney suspected that opposing counsel had not fully communicated the settlement offers proposed by the inquiring attorney to the opposing party. That opposing party was an institution with its own in-house legal counsel, although the institution had retained outside counsel to represent it in the matter. To ensure the settlement offers reached the party, the inquiring attorney proposed either to write directly to in-house counsel while copying outside counsel, or to direct the client to send a copy of the correspondence to in-house counsel, and asked how Rule 4.2 applied.

The Panel set out Rule 4.2 ("Communication With Person Represented By Counsel"), which bars a lawyer, in 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 authorization by law. The Panel opined that Rule 4.2 prohibited the inquiring attorney from direct communication with the opposing party's in-house counsel absent the consent of opposing counsel of record, and directed the attorney to Ethics Advisory Opinion 93-33 (issued August 25, 1993).

The Panel added that it would violate Rule 8.4(a) for the lawyer to delegate the proposed conduct to a nonlawyer or to advise another to communicate in a manner that would be impermissible if the lawyer did it directly.

Currency note

This opinion was issued in 1995 (Opinion 94-81, issued February 9, 1995), after the Rhode Island Supreme Court adopted the Model Rules of Professional Conduct effective November 15, 1988, and it applies Rules 4.2 and 8.4(a) 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, which amended these rules. 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 Treat this page as historical context, not current guidance.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 the opposing party's in-house lawyer when outside counsel represents them in the matter?

A: Not without the consent of opposing counsel of record. The Panel held Rule 4.2 barred direct communication with the institution's in-house counsel where outside counsel represented the institution in the matter.

Q: Does it help that I would copy outside counsel on the letter?

A: The Panel did not carve out an exception for that. It held the proposed direct communication prohibited under Rule 4.2 absent opposing counsel's consent.

Q: Can I have my client send the letter instead?

A: No. The Panel opined that it would violate Rule 8.4(a) to delegate the conduct to a nonlawyer or to advise another to communicate in a way that would be impermissible for the lawyer.

Background and rules framework

The opinion interprets Rhode Island Rules of Professional Conduct 4.2 (communication with person represented by counsel) and 8.4(a) (misconduct through the acts of another), the analogs of Model Rules 4.2 and 8.4(a). The Panel read Rule 4.2's no-contact bar to reach an institution's in-house counsel where the institution is represented in the matter by counsel of record, and used Rule 8.4(a) to close the workaround of acting through a nonlawyer or the client.

Citations and references

Rules of Professional Conduct:

• MR 4.2 / RI RPC 4.2 (communication with person represented by counsel)
• MR 8.4(a) / RI RPC 8.4(a) (violating the rules through the acts of another)

Other opinions cited:

• RI EAP Opinion 93-33 (issued August 25, 1993)

See also

• RI EAP Opinion 90-08: cannot contact a represented salesperson absent opposing counsel's consent
• 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%2094-81.pdf

Original opinion text

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

ETHICS ADVISORY PANEL
OPINION # 94-81 REQUEST # 555
Issued February 9, 1995

The inquiring attorney suspects that opposing counsel has not fully communicated various settlement offers proposed by the inquiring attorney to the opposing party. The inquiring attorney states that the opposing party is an institution with its own in-house legal counsel, although the institution retained outside legal counsel to represent the institution in this matter.

The inquiring attorney would like to insure that all settlement offers are being communicated to the opposing party. He/she proposes to communicate by letter directly to in-house counsel while mailing a copy to outside counsel and/or direct his/her client to send a copy of the correspondence to in-house counsel. The inquiring attorney seeks guidance with regard to Rule 4.2 in this proposed action.

Rhode Island Rule of Professional Conduct 4.2. entitled "Communication With Person Represented By Counsel" governs the inquiring attorney's responsibilities in this matter. Rule 4.2 states the following:

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 opines that Rule 4.2 prohibits the inquiring attorney from direct communication with in-house counsel for the opposing party absent the consent of opposing counsel of record. In light of the following circumstances, the proposed communication is prohibited according to Rule 4.2. The Panel directs the inquiring attorney to Ethics Advisory Opinion # 93-33 (Issued August 25, 1993).

In addition the panel opines that it would be a violation of Rule 8.4(a) for the lawyer to either delegate the above proposed conduct to a non-lawyer or to advise another to communicate in a manner that would be impermissible if the lawyer did the same.