Can a lawyer advise a client to contact the opposing creditor directly to get an account statement without telling the creditor the client has a lawyer?

Plain-English summary

The question was whether an attorney may advise his client, a debtor, to contact the client's creditor to obtain a written statement of the client's account when the client does not tell the creditor that he is represented and that the statement will be reviewed by the attorney, and whether the answer changes if the creditor has an in-house attorney. In the facts, a consumer consulted an attorney about a possible breach-of-warranty and fraud claim involving late fees and miscredited payments by a finance company. The attorney advised the client to request a statement of his account from the finance company to learn the balance and choose among options. The client asked a finance-company employee for the statement without saying he had consulted or retained an attorney; the employee sent it, and the client gave it to the attorney. No litigation was pending.

The Committee analyzed the situation under the rules governing a lawyer's conduct toward non-clients, Rules 4.01 through 4.04. Under Rule 4.01 (truthfulness), nothing indicated the attorney made or advised any false statement of fact or law, and disclosure of the representation was not necessary to avoid making the attorney party to a criminal or fraudulent act, because no criminal or fraudulent act was contemplated or carried out; Rule 4.01 was not violated.

Under Rule 4.02, the Committee acknowledged that, read literally, the rule seems to bar any direct or indirect contact by an attorney with a represented person without that person's lawyer's consent. But the client himself was entitled to request his account balance and a statement, and the attorney's advising him to do so did not violate Rule 4.02, even if the attorney knew the finance company had in-house counsel. Rules 4.03 and 4.04 did not apply. The Committee concluded that no Disciplinary Rule was violated where the attorney advised the client only to request his account balance and a written statement and to bring it for review, regardless of whether the finance company had in-house counsel, outside counsel, or none.

Currency note

This opinion was issued in 1992, under the Texas Disciplinary Rules of Professional Conduct that took effect January 1, 1990. Texas did not adopt the ABA's Ethics 2000 revisions; its rules have been amended only piecemeal since, including the comprehensive 2021 revisions adopted by Texas Supreme Court order. 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 tell a client to contact the opposing party directly?

A: The Committee concluded that advising the client to make a request he was himself entitled to make, here, asking the creditor for his own account statement, did not violate Rule 4.02's no-contact rule.

Q: Does it matter that the client did not disclose he had a lawyer?

A: The Committee concluded it did not, on these facts. There was no false statement and no criminal or fraudulent purpose, so Rule 4.01 created no duty to disclose the representation.

Q: Does the answer change if the creditor has in-house counsel?

A: The Committee concluded it does not. The attorney's advice did not violate Rule 4.02 even if the attorney knew the finance company had in-house counsel, regardless of whether the creditor had in-house, outside, or no counsel.

Background and rules framework

The opinion interprets the Texas Disciplinary Rules governing a lawyer's dealings with non-clients: Rule 4.01 (truthfulness in statements to others; ABA Model Rule 4.1), Rule 4.02 (communication with one represented by counsel; Model Rule 4.2), and Rules 4.03 and 4.04 (dealing with unrepresented persons and respect for the rights of third persons). The analysis turns on the distinction between the lawyer contacting a represented person and the client making a contact the client is entitled to make.

Citations and references

Rules of Professional Conduct:

• MR 4.2 (communication with person represented by counsel), MR 4.1 (truthfulness in statements to others)
• Texas Disciplinary Rules 4.01, 4.02, 4.03, 4.04

See also

• TX Ethics Op. 492: Rule 4.02 and Communicating With City Employees
• ABA Formal Op. 06-443: Contacting an Organization's Inside Counsel
• FL Bar Ethics Op. 76-21: Contacting a Represented Adverse Party

Source

• Landing page: https://www.legalethicstexas.com/resources/opinions/opinion-488/
• Original PDF: https://tcle-web.s3.amazonaws.com/public/documents/Opinion_488.pdf

Original opinion text

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

QUESTION PRESENTED

Is it proper for an attorney to advise his client (a debtor) to contact the client's creditor to obtain a written statement of the client's account if the client does not inform the creditor that the client is represented by counsel and that the statement of account will be reviewed by the client's attorney? Would a different answer be required if the creditor had an in-house attorney?

STATEMENT OF FACTS

An attorney is contacted by a purchaser of consumer goods under a retail installment contract regarding a potential breach of warranty and fraud claim associated with the purchase and potential improper or questionable late fees charged by a finance company which purchased the contract and the finance company's failure to timely credit payments on the contract.

An attorney-client relationship is formed and the attorney advises the client (the purchaser of consumer goods) of several options that might be available to the client and that the client should request a statement of his account from the finance company to determine the client's current account balance and to allow the client to make an informed decision as to which option to pursue.

The client then contacts an employee of the finance company and requests a written statement of his account but does not tell the finance company's employee that he has consulted or is represented by an attorney. The employee later prepares and sends the client a written statement of his account, which is delivered by the client to his attorney.

No litigation was pending between the parties when the client requested the statement of his account.

QUESTIONS
If the creditor is not represented by an attorney, is this a prohibited communication by an attorney with an unrepresented person without disclosing his role as an attorney?
If the creditor has an in-house attorney, is this a prohibited communication with a represented party without the consent of that party's attorney?

DISCUSSION

Rules 4.01, 4.02, 4.03 and 4.04 govern the conduct of attorneys in non-client relationships.

Rule 4.01 relates to the truthfulness of statements by an attorney to others. No fact presented indicates or implies that the attorney made or advised his client to make any false statement of fact or law to the employee of the finance company. Under the facts presented, it was not necessary to disclose to the finance company the fact that the client was represented by an attorney, to avoid making the attorney a party to a criminal act or assisting a fraudulent act perpetuated by the client. No criminal or fraudulent act was contemplated or perpetuated by the client or his attorney. Rule 4.01 was not violated under the facts.

Rule 4.02 prohibits an attorney from communicating or encouraging or causing another to communicate about the subject of representation with another person, organization or entity known by the attorney to be represented by an attorney. If read literally, this Rule seems to prohibit any direct or indirect contact by an attorney with any other person known by the attorney to be represented by an attorney, without the consent of the attorney for the other party, unless authorized by law to do so. Under the facts presented, the client was entitled to request the finance company to provide him with his account balance and a copy of a statement of his account. The fact that his attorney advised him to do so did not violate Rule 4.02, even if his attorney knew that the finance company had in-house counsel.

Rules 4.03 and 4.04 have no application under the facts presented.

No Disciplinary Rule was violated if the attorney advised the client only to request a statement as to his account balance and a written statement of his account, and bring it to him for review, regardless of whether the finance company had in-house or outside counsel, or no attorney.

CONCLUSION

No Disciplinary Rule was violated if the attorney advised the client only to request a statement as to his account balance and a written statement of his account, and bring it to him for review, regardless of whether the finance company had in-house or outside counsel, or no attorney.

Tex. Comm. On Professional Ethics, Op. 488 (1992)