Can a lawyer let the client communicate directly with the represented opposing party about the dispute, and must the lawyer try to stop it?

Plain-English summary

Both parties to a controversy were represented by counsel. The questions were whether the lawyer for one party could permit his client to communicate with the opposing party about the subject of the controversy without the consent of opposing counsel, and whether the lawyer should take affirmative action to prevent such communications.

The Committee began with Texas Canon 9 and ABA Canon 9, which bar a lawyer from communicating with a represented adverse party about the subject of the controversy, and Texas Canon 19 and ABA Canon 22, which require a lawyer's conduct toward other attorneys to be characterized by candor and fairness. It was obvious that a lawyer could not advise his client to communicate with a represented adverse party; the Committee held it equally unethical for a lawyer to permit his client to do so without opposing counsel's approval (citing ABA Opinion 75 and ABA Informal Decision 524).

On the affirmative-duty question, the Committee noted that ABA Canon 16 directs a lawyer to use his best efforts to restrain clients from doing what the lawyer himself ought not to do, and that the ABA committee had applied that canon to client contacts with the other party. Although Texas had not adopted ABA Canon 16, the Committee held that the scope of Texas Canons 9 and 19 was broad enough to impose the duty, and ruled that a lawyer should exercise reasonable efforts to prevent improper communications by his client with the adverse party. That ruling was 8-0. Two members added that if the client persisted in improper communications, the lawyer should disqualify from further handling of the matter.

Currency note

This opinion was issued in 1968, under the former Texas Canons of Ethics, which the Texas Disciplinary Rules of Professional Conduct replaced effective January 1, 1990. 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 Treat this page as historical context, not current guidance.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 mentioned here.

Common questions

Q: Can a lawyer let the client talk directly to the represented opposing party about the case?

A: The Committee said no. It held it unethical for a lawyer to permit his client to communicate with a represented adverse party about the subject of the controversy without opposing counsel's approval, just as it would be for the lawyer to do it himself.

Q: Does the lawyer have to take steps to stop the client from making contact?

A: Yes. The Committee ruled that Canons 9 and 19 were broad enough to require the lawyer to exercise reasonable efforts to prevent improper communications by the client with the adverse party.

Q: What did the opinion say should happen if the client keeps doing it anyway?

A: That was a minority view. Two members felt that if the client persisted in improper communications, the lawyer should disqualify from further handling of the matter; that was not the Committee's holding.

Background and rules framework

The opinion interprets former Texas Canon 9 and ABA Canon 9 (no communication with a represented adverse party about the controversy) and Texas Canon 19 and ABA Canon 22 (candor and fairness toward other lawyers), with reference to the unadopted ABA Canon 16. The modern analogs are ABA Model Rule 4.2 (communication with represented persons) and Model Rule 8.4(a) (a lawyer may not violate the rules through the acts of another).

Citations and references

Rules of Professional Conduct:

• MR 4.2 (communication with represented persons), as the modern analog
• MR 8.4(a) (violating the rules through the acts of another), as the modern analog
• Texas Canons 9 and 19; ABA Canons 9, 16, and 22 (former canons)

Other opinions cited:

• ABA Opinion 75 (August 1932)
• ABA Informal Decision 524 (May 1962)

See also

• TX Ethics Op. 342: Interviewing Employees of an Adverse Corporate Party
• TX Ethics Op. 352: Interviewing Represented Co-Defendants Without Consent
• TX Ethics Op. 355: Advising a Represented Opposing Party at a Deposition

Source

• Landing page: https://www.legalethicstexas.com/resources/opinions/opinion-339/
• Original PDF: https://tcle-web.s3.amazonaws.com/public/documents/Opinion_339.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

QUESTION PRESENTED

When both parties to a controversy are represented by counsel, may the attorney for one party permit his client to communicate with the opposing party upon the subject matter of the controversy without consent of opposing counsel?
Should the attorney take affirmative action to prevent such communications by his client?

23 Baylor L. Rev. 874 (1972)

IMPROPRIETIES OF CLIENT - NEGOTIATIONS WITH OPPOSITE PARTY CANDOR AND FAIRNESS
An attorney should not, without the consent of opposing counsel, sanction an attempt of his client to communicate with the adverse party upon the subject matter of the controversy and the attorney should affirmatively discourage such conduct.

Canons 9, 19.
ABA Canons 9, 16, 22.

Both Texas Canon 9 and ABA Canon 9 expressly prohibit an attorney from communicating with the adverse party upon the subject matter of the controversy when he is represented by counsel. Texas Canon 19 and ABA Canon 22 further provide that the conduct of an attorney with other attorneys should be characterized by candor and fairness. Under these Canons it is, of course, obvious that it would be unethical for an attorney to advise his client to communicate with an adverse party represented by counsel and it is the unanimous opinion of this Committee that it would be equally unethical for an attorney to permit his client to communicate with an adverse party without approval of opposing counsel. See ABA Opinion No. 75 (August, 1932) and ABA Informal Decision No. 524 (May, 1962).

ABA Canon 16 provides that "A lawyer should use his best efforts to restrain and prevent his clients from doing those things which the lawyer himself ought not to do," and under that Canon the ABA Professional Ethics Committee ruled in Informal Decision 524 that an attorney should use his best efforts to restrain and prevent his clients from communicating with the other party without consent of opposing counsel.

Since Texas has not adopted ABA Canon 16, it might be argued that under the Texas Canons an attorney has no ethical duty to take affirmative action to prevent improper communications by his client but it is our opinion that the scope of Canons 9 and 19 is sufficiently broad to impose such duty and we therefore rule that an attorney should exercise reasonable efforts to prevent improper communications by his client with the adverse party. (8-0.)

Two members of the Committee further feel that if the client persists in improper communications with the adverse party, his attorney should disqualify from further handling of the matter.

Tex. Comm. On Professional Ethics, Op. 339 (1968)