After winning a judgment, can the plaintiff's lawyer contact the defendant directly about settling it, or must he go through the defendant's lawyer?

Plain-English summary

A member asked about the propriety of an attorney, acting for a plaintiff who had secured a judgment, contacting the defendant directly by letter, telephone, or in person, rather than communicating with the attorney who had represented the defendant in the litigation. The committee treated this as a matter of first impression and was not unanimous, assuming for its response that the appeal period had expired.

A majority concluded that entry of the judgment and expiration of the appeal period do not automatically terminate the attorney-client relationship between the defendant and his lawyer, because many matters may remain for the judgment debtor to consult his lawyer about. The majority therefore found Canon 9 still applicable, so plaintiff's counsel should not communicate directly with the defendant unless and until he obtained consent from the attorney who represented the defendant in the litigation. Two members believed that entry of judgment and expiration of the appeal period terminate the relationship, so that plaintiff's counsel could communicate directly with the judgment debtor as a matter of professional ethics, though even they believed the defendant's attorney should be contacted as a matter of courtesy first.

Currency note

This opinion was issued in 1965, before The Florida Bar's adoption of the 2006 revisions to the Rules of Professional Conduct. The opinion applied former Canon 9 of the Canons of Professional Ethics; communication with a person represented by counsel is now governed by Rule 4-4.2 of the Rules Regulating The Florida Bar (Model Rule 4.2). Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against the current rules before relying on any specific requirement mentioned here.

Common questions

Q: Can a plaintiff's lawyer contact the defendant directly after winning a judgment?

A: A majority said no, not until the lawyer has determined the defendant is no longer represented, because entry of judgment and expiration of the appeal period do not automatically end the attorney-client relationship.

Q: Does the appeal period expiring change the answer?

A: For the majority, no; it found Canon 9 still applicable and required consent from the defendant's attorney first. Two members disagreed, viewing the relationship as terminated, but still recommended contacting the defendant's attorney as a courtesy.

Background and rules framework

The opinion applied former Canon 9 of the Canons of Professional Ethics, which barred communicating with a party represented by counsel without that counsel's consent. The rule is now Rule 4-4.2 of the Rules Regulating The Florida Bar (Model Rule 4.2). The committee's split turned on whether the representation continued after judgment and the appeal period.

Citations and references

Rules of Professional Conduct:

• Canon 9 [Canons of Professional Ethics; communicating with a represented party; see current Rule 4-4.2]

See also

• FL Bar Ethics Op. 65-62: Direct Contact With Insurer Claims Representatives
• FL Bar Ethics Op. 67-26: Copying the Insured on Correspondence to the Insurer

Source

• Landing page: https://www.floridabar.org/etopinions/etopinion-65-3/
• Original PDF: https://www-media.floridabar.org/uploads/2017/04/FL-Bar-Ethics-Op-65-3.pdf

Original opinion text

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

FLORIDA BAR ETHICS OPINION
OPINION 65-3
January 20, 1965
Advisory ethics opinions are not binding.
Entry of a judgment and expiration of the appeal period does not automatically terminate the attorney-client relationship. Accordingly, the plaintiff's attorney may not communicate directly with the defendant upon the subject of the controversy, with a view to settlement of the judgment, until he has determined that the defendant is no longer represented by counsel.
Canon: 9
Chairman Smith stated the opinion of the committee:
In essence, a member of The Florida Bar inquires as to the propriety of an attorney, acting on behalf of a plaintiff who has secured a judgment against a defendant, contacting the defendant directly either by letter, telephone call or personal contact rather than communicating with the attorney who represented the defendant in the course of the litigation.
This appears to be an inquiry of first impression, and the Committee is not unanimous in its response. For purposes of this response, the Committee has assumed that the appeal period has expired.
It is the opinion of a majority of the Committee that entry of the judgment and expiration of the appeal period do not automatically terminate the attorney-client relationship between the defendant and his lawyer. In the opinion of the majority, there are many matters remaining to be resolved from the point of view of the judgment debtor about which the debtor may continue to consult his lawyer. The majority concludes, therefore, that the provisions of Canon 9 of the Canons of Professional Ethics are still applicable and that counsel for the plaintiff should not directly communicate with the defendant unless and until he has obtained consent from the attorney who represented the defendant in the litigation.
Two members of the Committee believe that entry of the judgment and expiration of the appeal period terminates the attorney-client relationship and that counsel for the plaintiff may therefore communicate directly with the judgment debtor insofar as professional ethics are involved. These Committee members, however, believe that the defendant's attorney should nevertheless be contacted as a matter of courtesy before counsel for plaintiff proceeds to deal directly with the defendant.