Can a lawyer contact the opposing party directly when that party is represented by counsel?

Plain-English summary

The inquiry came from plaintiff's counsel who wanted to contact the defendant directly. The committee responded that RPC 4.2 prohibits a lawyer from communicating with a person who is represented by counsel, absent consent or authorization by law, and concluded that the rule clearly prohibited the contact with the opposing party under the facts described.

The inquirer also asked about the conduct of opposing counsel. The committee declined to address that, explaining that it limits its responses to the conduct of the inquiring lawyer. It noted that if the inquirer believed opposing counsel's conduct violated an ethical duty, that concern could, consistent with RPC 8.3, be directed to the Washington State Bar Association's Office of Disciplinary Counsel.

Currency note

This opinion was issued in 1999, 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 Treat this page as historical context, not current guidance.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 (communication with a person represented by counsel) and RPC 8.3 (reporting professional misconduct) were both carried into the 2006 revisions, so verify the current rule text before relying on it.

Common questions

Q: Can a lawyer contact the opposing party directly when that party is represented?

A: No. The committee concluded that RPC 4.2 clearly prohibited the inquiring lawyer's contact with the opposing party under the facts described, absent consent or authorization by law.

Q: Will the committee tell me whether opposing counsel acted unethically?

A: No. The committee said it limits its responses to the conduct of the inquiring lawyer and was not in a position to respond to that part of the inquiry.

Q: Where can concerns about opposing counsel's conduct go?

A: The committee noted that, consistent with RPC 8.3, such an inquiry may be directed to the Washington State Bar Association, Office of Disciplinary Counsel.

Background and rules framework

The opinion applied Washington RPC 4.2 (communication with a person represented by counsel), corresponding to ABA Model Rule 4.2, which bars a lawyer from communicating about the subject of the representation with a represented person absent that person's counsel's consent or authorization by law. The committee also referred to RPC 8.3 (ABA Model Rule 8.3), the rule addressing how concerns about another lawyer's misconduct are raised, in declining to evaluate opposing counsel's conduct.

Citations and references

Rules of Professional Conduct:

• ABA Model Rule 4.2 (communication with person represented by counsel); Washington RPC 4.2
• ABA Model Rule 8.3 (reporting professional misconduct); Washington RPC 8.3

See also

• WSBA Ethics Op. 972: No-Contact Rule and Reporting
• WA Ethics Op. 1492: Contacting an Opponent's Insurer
• WA Ethics Op. 1738: No-Contact Rule in a Non-Legal Job

Source

• Landing page: https://ao.wsba.org/print.aspx?ID=1062

Original opinion text

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

Advisory Opinion: 1869
Year Issued: 1999
RPC(s): RPC 4.2; 8.3
Subject: Contact with represented party

I have been instructed by the Rules of Professional Conduct Committee to respond to your ethics inquiry #1869 concerning plaintiff’s counsel wanting to contact defendant.

The Committee has reviewed your inquiry and determined the following:

RPC 4.2 prohibits a lawyer from communicating with a person who is represented by counsel, absent consent or authorization by law. The committee is of the opinion that RPC 4.2 clearly prohibits your contact with the opposing party under the facts you have described. A copy of RPC 4.2 is enclosed for your reference.

You also inquired about the conduct of opposing counsel. The committee limits its responses to the conduct of the inquiring lawyer and therefore is not in a position to respond to that portion of your inquiry. If you believe that opposing counsel’s conduct violates an ethical duty, you may, consistent with RPC 8.3 and duties imposed upon you under the Rules of Professional Conduct, direct that inquiry to the Washington State Bar Association, Office of Disciplinary Counsel.