If a lawyer claims to represent the opposing party but won't confirm it in writing, can you contact that party directly?

Plain-English summary

The inquiry concerned whether a lawyer should provide a letter of representation to opposing counsel and, if the lawyer refuses, whether opposing counsel could then contact the party directly to find out whether the party is represented. The committee answered in two parts.

First, the committee concluded that whether a lawyer has a duty to disclose his or her representative capacity to a lawyer who represents a party is a question of the substantive law of agency, and therefore beyond the scope of the RPC committee's charter. Second, the committee concluded that the failure of the lawyer to provide information clarifying the relationship could, in the proper circumstances, allow the requesting lawyer to contact the purported client directly.

Currency note

This opinion was issued in 1998, before the Washington State Bar Association's adoption of the 2006 revisions to the Rules of Professional Conduct. 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 Treat this page as historical context, not current guidance.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. Washington's RPC 4.2 corresponds to ABA Model Rule 4.2 (communication with a person represented by counsel), which bars contact with a represented person about the subject of the representation absent the other lawyer's consent.

Common questions

Q: Can you contact the opposing party if their lawyer won't confirm representing them?

A: The committee concluded that the lawyer's failure to provide information clarifying the relationship could, in the proper circumstances, allow the requesting lawyer to contact the purported client directly.

Q: Must a lawyer confirm in writing that he represents a party?

A: The committee said whether a lawyer must disclose representative capacity is a substantive agency-law question that is beyond the scope of its charter.

Background and rules framework

The opinion addressed Washington RPC 4.2 (communication with a person represented by counsel), corresponding to ABA Model Rule 4.2. The committee distinguished the threshold agency-law question of whether a lawyer must confirm representation (outside its charter) from the no-contact rule's operation, and concluded that an unclarified representation could, in proper circumstances, permit direct contact with the purported client.

Citations and references

Rules of Professional Conduct:

• ABA Model Rule 4.2 (communication with a person represented by counsel); Washington RPC 4.2

See also

• WA Ethics Op. 1000: Contact With a Represented Opposing Party
• WA Ethics Op. 1821: Adverse Caller's Voicemail

Source

• Landing page: https://ao.wsba.org/print.aspx?ID=1016

Original opinion text

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

Advisory Opinion: 1823
Year Issued: 1998
RPC(s): RPC 4.2
Subject: Contact with opposing party when lawyer purporting to represent that party refuses to provide letter of representation

[The inquiry concerned whether a lawyer should provide a letter of representation to opposing counsel, and if the lawyer refuses to provide such a letter, whether the opposing counsel could contact the party directly to find out if the party is represented.]

The Committee has reviewed your inquiry and determined that the following:

1. Whether a lawyer has a duty to disclose his/her representative capacity to a lawyer who represents a party is a question of the substantive law of agency, and therefore beyond the scope of the RPC Committee's charter. 2. However, the failure of the lawyer to provide information clarifying the relationship could, in the proper circumstances, allow the requesting lawyer to contact the purported client directly.