State Bar Association
Topic: Communication with opposing counsel;
communication with opposing party
Digest: Lawyer may ethically communicate with
opposing counsel in any manner lawyer desires regardless of request of opposing
counsel. But opposing counsel is not
required to respond to the lawyer’s chosen method. With the prior consent of opposing counsel, a
lawyer may (but is not required to) send to opposing counsel’s client copies of
written communications to opposing counsel.
Rules: 1.2(e), 1.4(a)(3), 4.2(a) & (c)
inquirer is representing himself in a litigated matter. Opposing counsel has
advised the inquirer not to communicate with him by telephone, but rather to
communicate with him only in writing, and has instructed the inquirer that all
emails and writings sent to opposing counsel by the inquirer should be copied
to the opposing party.
inquirer asks two questions:
a lawyer abide by opposing counsel’s direction that the lawyer not communicate
with him by telephone?
or must a lawyer a lawyer comply with opposing counsel’s direction to send
copies of all emails and other writings to opposing counsel’s client?
to opposing counsel’s direction not to communicate by telephone, no provision
in the Rules of Professional Conduct (the “Rules”) mandates how lawyers must
communicate with each other. Nor does
any provision in the Rules either prohibit a lawyer from placing a telephone
call to opposing counsel or require opposing counsel to accept a telephone call
from another lawyer. Common sense
dictates that lawyers, as members of an honorable profession, should work out
between themselves the methods of communication that will best facilitate
resolution of the matter at hand. In this era, email in many instances is the
most efficient mode of communication.
to opposing counsel’s instruction to copy opposing counsel’s client on every
written communication to opposing counsel, Rule 4.2(a), sometimes called the
“no-contact” rule, provides:
a. In representing a client, a lawyer shall not
communicate . . . about the subject of the representation with a person the
lawyer knows to be represented by another lawyer in the matter, unless the
lawyer has the prior consent of the other lawyer or is authorized to do so by
4.2(c) makes clear that this prohibition applies when a lawyer is representing
himself pro se:
(c) A lawyer who
is acting pro se . . . in a matter is subject to paragraph (a), but may
communicate with a represented person . . . provided the lawyer . . . gives reasonable advance notice to the represented person’s counsel that such
communications will be taking place.
[12A] to Rule 4.2 (“When a lawyer is proceeding pro se in a matter . . ., the
lawyer’s direct communications with a counterparty are subject to the
no-contact rule, Rule 4.2.”)
a lawyer may not communicate with a party the lawyer knows to be represented by
counsel without the prior consent of the represented party’s counsel or without
giving the notice required by Rule 4.2(c).
Here, however, the opposing party’s counsel has directed the lawyer to
send copies of communications to the opposing party, thus furnishing the prior
consent required by Rule 4.2(a). See
also Rule 1.2(e) (“A lawyer may exercise professional judgment to . . .
accede to reasonable requests of opposing counsel, when doing so does not
prejudice the rights of the client.”)
still leaves the question whether the lawyer is required as opposed to
permitted to send copies to the represented client. We find nothing in the Rules that require a
lawyer to communicate with opposing counsel’s client. It is not the lawyer’s responsibility to keep
the opposing counsel’s client “informed about the status of the matter” as
required by Rule 1.4(a)(3). That is opposing counsel’s obligation under that
Rule. See N.Y. State 1076 ¶4
(2015) (“A lawyer is required to communicate regularly with the client on the
status of the matter for which the lawyer has been retained. . . . Rule
1.4(a)(3) requires the lawyer to keep the client reasonably informed about the
status of the matter.”).
8. A lawyer may communicate with opposing counsel
in any manner he chooses, including by telephone, regardless of the
instructions of opposing counsel. But
opposing counsel is not required to respond to the lawyer’s chosen method. With
the prior consent of opposing counsel, a lawyer may (but is not required to)
send to opposing counsel’s client copies of written communications to opposing