Can a lawyer contact the opposing party directly after the other side's lawyer dies and no new lawyer has appeared?
Apply this to your situation
This page answers the general question as of 2002. Ezel answers yours: whether it's allowed on your facts, under the current rules of professional conduct in your state, with citations.
Plain-English summary
The inquirer represented a defendant in a pending lawsuit. The plaintiff's lawyer died before the matter was completed, and no substitute counsel had appeared. She asked what contact, if any, she could make with the opposing party in these circumstances. The committee said the relevant rule is RPC 4.3 because, after the death of the other lawyer, the inquirer has a reasonable basis for believing the plaintiff is no longer represented.
The committee said the inquirer may directly contact the plaintiff and ask whether they are currently represented. If the answer is "yes," she may ask the identity and means of contacting the new lawyer, all further communication with the plaintiff must cease, and she should then contact the new lawyer. If the answer is "no," she may communicate with the plaintiff as a pro se party and discuss the merits of the dispute. In the alternative, the committee said the inquirer may make a motion to the court where the matter is pending for supervisory direction.
Currency note
This opinion was issued in 2002, 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 Treat this page as historical context, not current guidance.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.
In practice
Under the Washington rules as they stood at the time of the opinion, the committee treated the death of opposing counsel, with no substitute appearing, as giving the lawyer a reasonable basis to believe the other party is unrepresented, so RPC 4.3 (dealing with an unrepresented person) governs rather than the no-contact rule. The opinion frames a sequence: ask the party whether they are represented; if so, obtain the new lawyer's contact, stop communicating with the party, and deal with the lawyer; if not, deal with the party as pro se and discuss the merits. It also identifies a motion to the court for supervisory direction as an alternative.
Common questions
Q: After the other side's lawyer dies, can I contact the opposing party directly?
A: The committee said RPC 4.3 governs because the lawyer has a reasonable basis to believe the party is no longer represented, so the lawyer may directly ask the party whether they are currently represented.
Q: What if the party says they have a new lawyer?
A: The committee said the lawyer may ask the identity and means of contacting the new lawyer, must cease all further communication with the party, and should then contact the new lawyer.
Q: What if the party says they are not represented?
A: The committee said the lawyer may communicate with the party as a pro se party and discuss the merits of the dispute.
Q: Is there an alternative to contacting the party at all?
A: Yes. The committee said the lawyer may, in the alternative, move the court where the matter is pending for supervisory direction.
Background and rules framework
The opinion applies Washington RPC 4.3 (dealing with an unrepresented person; corresponding to Model Rule 4.3). The committee treated the death of opposing counsel, with no substitute appearing, as a reasonable basis to believe the opposing party is no longer represented, shifting the situation out of the no-contact rule and into RPC 4.3's framework for unrepresented persons. The opinion reflects Washington's pre-2006 rule numbering.
Citations and references
Rules of Professional Conduct:
- Model Rule 4.3 / Washington RPC 4.3 (dealing with an unrepresented person)
See also
- WSBA Ethics Op. 1098: Existence of a Lawyer-Client Relationship and the Duty to Clarify
- WSBA Ethics Op. 1601: Legal Advice to Witnesses and a Defendant
- WSBA Ethics Op. 1669: Settling With an Unrepresented Non-Party
Source
- Landing page: https://ao.wsba.org/print.aspx?ID=1235
Original opinion text
Reproduced from the official source for research purposes. The linked source is authoritative.
Advisory Opinion: 1990
Year Issued: 2002
RPC(s): RPC 4.3
Subject: Contacting represented party, death of opposing counsel
The inquirer states that she represents a defendant in a pending lawsuit. The lawyer representing the plaintiff has died before the matter has been completed. No substitute counsel has appeared. She seeks guidance on what, if any, contact may be made with the opposing party in light of these circumstances.
The committee opined that the relevant rule is RPC 4.3 because the inquirer has a reasonable basis for believing that, after the death of the other lawyer, the plaintiff is no longer represented. The inquirer may directly contact the plaintiff and ask if they are currently represented. If the response is “yes”, the inquirer may ask the identity and means of contacting the new lawyer and all further communication with the plaintiff must cease. The inquirer should then contact the new lawyer. If the response is “no”, the inquirer may communicate with the plaintiff as a pro se party and discuss the merits of the dispute.
In the alternative, the inquirer may make a motion to the appropriate court in which the matter is pending for supervisory direction.
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