Ezel / Ethics Opinions / SBAND

Must a lawyer stop a client from directly contacting a represented opponent or withdraw if the contacts continue?

Short answer On the stated facts, the committee said the lawyer had no duty to demand an end to the client’s direct contacts and no duty to withdraw. The lawyer had neither prompted the contacts nor used them to circumvent Rule 4.2.
Bar
SBAND
Issued
August 7, 1996
Source
View Original PDF

Apply this to your situation

This page answers the general question as of 1996. Ask about yours and see what the current North Dakota Rules of Professional Conduct say for your facts, with citations.

How much weight this carries: Under North Dakota Rule for Lawyer Discipline 1.2(B), a lawyer who acts in good faith and in reasonable reliance on a written opinion of the association's ethics committee is not subject to sanction for the conduct the opinion addresses. Source.
About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official ethics opinion. The original opinion (linked on this page as a PDF) is the authoritative source for any reliance.
View original ethics opinion (PDF)

Plain-English summary

A litigation client contacted a represented opposing party directly about the lawsuit. The lawyer had not encouraged or initiated those contacts.

The committee distinguished lawyer contact barred by Rule 4.2 from direct communication by a party. It said client contacts could not be used to circumvent the rule, but found no indication of that here. Consequently, it found no duty to demand the contacts cease or to withdraw if they continued.

Currency note

This opinion was issued in 1996, before North Dakota's 2006 revisions to its Rules of Professional Conduct. The later North Dakota Opinion 06-05 states: “On August 1, 2006, material changes to N.D.R. Prof. Conduct 1.10(a) will take effect.” 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 Treat this page as historical context, not current guidance.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, deadline, or requirement.

Common questions

Q: Does Rule 4.2 itself bar a client from contacting another party?

A: No. The committee said the rule restricts the lawyer, while warning that client contact cannot be a way around it.

Q: Did the lawyer have to withdraw if the client continued?

A: No. On the stated facts, the committee found no such duty.

Background and rules framework

The opinion discusses North Dakota Rules 4.2, 8.4(a) in addressing the stated request.

Citations and references

Rules of Professional Conduct:

  • North Dakota Rule 4.2.
  • North Dakota Rule 8.4(a).

See also

Source

Original opinion text

Full opinion text unavailable from the official source; see the linked source above for the complete text.

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