Can a lawyer contact an opposing party's client directly to determine whether opposing counsel is even authorized to bring the suit?

Plain-English summary

The Committee considered a situation in which the State of Alaska's Department of Law, suspecting that Alaska Legal Services Corporation lacked authority to bring lawsuits on behalf of an Alaska community, interviewed members of the community's governing body and obtained written statements that Alaska Legal Services lacked authority, all without the knowledge of Alaska Legal Services. The question was whether this violated former Canon 9 and DR 7-104(A)(1), the no-contact rule.

The opinion first concluded the rule applied even though the Department of Law had directly opposed the community only in the closely related suit against the Federal Government; the two suits were so connected that acting in one was, for these purposes, acting in regard to the subject matter of the other. It distinguished an earlier Committee opinion permitting contact with government employees on the ground that the agent here did not explain to the governing group the implications of their statements, which the opinion called reprehensible under DR 7-104(A)(1).

The opinion concluded that neither the Department's status as the State's legal branch, nor a legislator's request, nor the community's character as a State entity justified the contact; a State entity that sues the State must be treated as any other litigant. It rejected the idea that suspicion that opposing counsel was not authorized to bring the suit justified contacting the client, because adequate alternatives existed: contacting the other lawyer for clarification, requesting permission to communicate with the client on the representation question, taking the matter to the Board of Governors, or using discovery. The opinion concluded that the Department of Law acted in an improper manner.

Currency note

This opinion was issued in 1972, before the Alaska Bar Association's adoption of the Alaska Rules of Professional Conduct (it applies the former Code of Professional Responsibility and Canons of Professional Ethics) and before the 2009 revisions to those rules. The no-contact rule has since been recodified as Rule 4.2. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific point mentioned here.

Common questions

Q: Can a lawyer contact the other side's client to check whether their lawyer is authorized to sue?

A: No. The opinion concluded that suspicion that opposing counsel lacks authority does not justify contacting the represented client; adequate alternatives exist.

Q: What are the proper alternatives?

A: Per the opinion, contact the other lawyer for clarification, request permission to communicate with the client on the representation question, take the matter to the Board of Governors, or use discovery.

Q: Does it matter that the contacting lawyer was a government attorney acting at a legislator's request?

A: No. The opinion concluded that neither the Department's status as the State's legal branch nor a legislator's request justified the contact; the opposing entity must be treated as any other litigant.

Background and rules framework

The opinion applied former Canon 9 of the Canons of Professional Ethics and DR 7-104(A)(1) of the Code of Professional Responsibility, which barred communicating, during representation, with a party known to be represented by a lawyer in the matter without that lawyer's consent or legal authorization. That subject is now treated by Model Rule 4.2 (communication with a represented person).

Citations and references

Rules of Professional Conduct (former Canons/Code; cf. Model Rules):

• Canon 9 of the former Canons of Professional Ethics
• DR 7-104(A)(1) (no contact with a represented party) (cf. Model Rule 4.2)

See also

• Alaska Ethics Op. 71-1: Contacting a Government Entity's Employees
• Alaska Ethics Op. 84-11: Interviewing a Non-Managerial Government Employee
• Alaska Ethics Op. 95-7: Pro Se Lawyer Contacting a Represented Party

Source

• Landing page: https://alaskabar.org/ethics-discipline/ethics-opinions/adopted-ethics-opinions-chronological/
• Original PDF: https://alaskabar.org/wp-content/uploads/72-2.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.
Ethics Opinion No. 72-2
Communication Upon Subject in Controversy with Opposing Party when
Representation by Counsel in Question.
The Ethics Committee of the Alaska Bar Association has been asked for
its opinion on a question dealing with an interpretation of former Canon 9 of
the Canons of Professional Ethics and the recently adopted Disciplinary Rule 7104(A)(1) of the Code of Professional Responsibility.
A stipulated Statement of the Facts is attached hereto as Exhibit A. In
two separate actions an Alaska community represented by Alaska Legal
Services Corporation sued both the Federal Government and the State of
Alaska to restrict the Federal Government from taking certain actions and to
restrict the State of Alaska from authorizing the Federal Government from
taking the same actions. The Federal Government was enjoined from taking the
actions but an injunction had not been issued against the State of Alaska.
The Department of Law of the State of Alaska learned of the possibility
that Alaska Legal Services Corporation was not authorized to bring the lawsuits
on behalf of the Alaska community and a member of the Alaska State
Legislature requested the Department of Law to investigate the matter. Without
the knowledge of Alaska Legal Services Corporation, a member of the legal staff
of the Department of Law interviewed members of the governing body of the
Alaska community and obtained written statements from them to the effect
that Alaska Legal Services Corporation did not have authority to bring the
lawsuits.
Canon 9 provides as follows:
A lawyer should not in any way communicate upon the subject of controversy
with a party represented by counsel; . . .
Disciplinary Rule 7-104 (A)(1) provides as follows:
During the course of his representation of a client, a lawyer shall not
communicate or cause another to communicate on the subject of the
representation with a party he knows to be represented by a lawyer in that matter
unless he has the prior consent of the lawyer representing such other party or is
authorized to law to do so.
In an earlier opinion written by Charles P. Flynn, this Committee found
as follows:
. . . that a lawyer is ethically permitted to communicate with employees of a
government entity concerning a matter in controversy and assuming that full
disclosure of the lawyer's representation and the connection of that representation
to the communication is made.
1

From the factual situation it must first be assumed that the only
communication that the Department of Law had with the governing group
related solely to the lawsuit filed against the Federal Government. The question
arises whether Canon 9 or DR 7-104 (A)(1) are applicable since the Department
of Law did not represent the Federal Government. We think that this must be
answered in the affirmative. The lawsuit filed against the State of Alaska was so
closely connected to the controversy with the Federal Government that they
could be considered as one. If the lawsuit against the Federal Government
failed, likewise would the lawsuit against the State of Alaska. By acting for the
Federal Government, the Department of Law was for all intents and purposes
acting in regard to the subject matter of the lawsuit against the State of Alaska.
Looking to the earlier ethical opinion of Mr. Flynn, if the Department of
Law did not have some justifiable reason for making contact with the governing
body, such action would be a violation of both Canon 9 and DR 7-104 (A)(1). In
addition, it is somewhat reprehensible pursuant to DR 7-104 (A)(1) that the
agent of the Department of Law did not explain the implications of their
statements to the governing group.
This Committee cannot find justification for violation of Canon 9 or DR 7104 (A)(1) in the fact that the Department of Law is the legal branch of the
State of Alaska or that a State Legislator requested the action. Neither can the
Committee find justification in the fact that the Alaska community involved is
an entity of the State of Alaska. It must be treated as any other litigant when it
brings a lawsuit against the State of Alaska.
Finally, the ultimate question arises whether there is justification to
communicate with the client of another attorney in a lawsuit when the
opposing counsel has information that the attorney is not authorized to bring
the suit or continue the same. We think not. There are sufficient alternative
measures that might be taken to alleviate any reason to create an exception to
the rule of non-communication.
In the first instance, the opposing counsel should contact the other
attorney and attempt to obtain a clarification from him. This would give the
other attorney an opportunity to contact his client and straighten out what
might merely be a misunderstanding as to his representation. A request could
also be made for permission to communicate with the other attorney's client in
regard to the question of representation. It is the opinion of the Committee that
in most instances the above action would be sufficient to resolve the question.
If, in fact, such action did not lead to a satisfactory resolution of the problem,
the opposing attorney could then take the matter to the Board of Governors of
the Bar Association or could use discovery and communicate with the other
attorney's client by that method. If indeed the client feels that he is not being
2

properly represented, in most situations one would assume that the client
himself would seek aid from the Bar Association or another attorney.
Accordingly, it is the opinion of this Committee that the Department of
Law of the State of Alaska acted in an improper manner when, without the
knowledge of opposing counsel, it communicated with the client of opposing
counsel for the purpose of determining whether or not opposing counsel was
properly representing its client.
Adopted by Board of Governors on January 30, 1972.
G:\Ds\COMM\Ethics\Ethics Opinions for CDROM\1972\72-2.doc

3