After a case ends, can a lawyer contact the opposing party directly to gather evidence that opposing counsel was negligent?

Plain-English summary

The inquiring attorney represented the appellee in an appeal where the appellant's attorney requested oral argument but failed to appear, and the order was affirmed. Considering a bar complaint against the appellant's attorney for apparent neglect, and suspecting the attorney had billed the appellant for the appearance he did not make, the inquirer asked whether he could contact the appellant directly to ask whether the appellant had authorized the non-appearance and whether he had been billed for it.

The committee concluded that it would be improper for the attorney to interject himself into the professional relationship between opposing counsel and the appellant. Although the rules did not expressly forbid the contemplated questioning, the committee characterized such intermeddling as unprofessional, discourteous, and inconsistent with the principles underlying Rule 4-4.2 (no communication about the subject of the representation with a person known to be represented, absent the other lawyer's consent) and Rule 4-7.4, both of which exist to insulate the attorney-client relationship from third-party interference.

The committee concluded that if the inquiring attorney felt compelled to investigate the details of opposing counsel's employment agreement, he should direct his inquiry to the lawyer. If the lawyer's response was unsatisfactory or confirmed his suspicions, the attorney should refer to Rule 4-8.3(a), which requires a lawyer who knows that another lawyer has committed a rules violation raising a substantial question as to that lawyer's honesty, trustworthiness, or fitness to inform the appropriate professional authority.

Currency note

This opinion was issued in 1988, before The Florida Bar'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 Treat this page as historical context, not current guidance.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.

Common questions

Q: Can a lawyer contact the opposing party directly after the case is over to investigate opposing counsel?

A: The opinion concluded it would be improper to interject oneself into the relationship between opposing counsel and that party, treating the conduct as inconsistent with the principles underlying Rule 4-4.2.

Q: How should the lawyer investigate instead?

A: The opinion concluded the lawyer should direct any inquiry to opposing counsel directly rather than to the represented party.

Q: What if the lawyer suspects misconduct?

A: The opinion pointed to Rule 4-8.3(a), which requires reporting another lawyer's violation that raises a substantial question as to honesty, trustworthiness, or fitness to the appropriate professional authority.

Background and rules framework

The opinion interprets Rule 4-4.2 (Model Rule 4.2) on communicating with a represented person, Rule 4-7.4 (then governing certain solicitation, since renumbered to 4-7.18), and Rule 4-8.3(a) (Model Rule 8.3) on reporting professional misconduct. The committee read Rules 4-4.2 and 4-7.4 as expressing a shared purpose of insulating the attorney-client relationship from interference by third parties.

Citations and references

Rules of Professional Conduct:

• Fla. Rule 4-4.2 / Model Rule 4.2 (communication with represented persons)
• Fla. Rule 4-7.4 (since renumbered 4-7.18)
• Fla. Rule 4-8.3(a) / Model Rule 8.3 (reporting misconduct)

See also

• FL Bar Ethics Op. 88-14: Contacting a Corporation's Former Employees
• FL Bar Ethics Op. 89-6: Statutory Notice to a Party
• FL Bar Ethics Op. 94-5: Threatening a Bar Grievance

Source

• Landing page: https://www.floridabar.org/etopinions/etopinion-88-4/
• Original PDF: https://www-media.floridabar.org/uploads/2017/04/FL-Bar-Ethics-Op-88-4-2.pdf

Original opinion text

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

FLORIDA BAR ETHICS OPINION
OPINION 88-4
April 15, 1988
Advisory ethics opinions are not binding.

It would be improper for a lawyer, upon conclusion of a matter, to contact the opposing party directly in a quest for evidence that opposing counsel was guilty of neglect in his representation of the opposing party.

RPC: 4-4.2, 4-7.4 [See current 4-7.18], 4-8.3(a)

The inquiring attorney represented the Appellee in the appeal of a particular case. The Appellant requested oral argument, but Appellant's attorney failed to appear. The order of the trial court was affirmed. The matter is now concluded.

The inquirer is considering filing a complaint with The Florida Bar about the conduct of Appellant's attorney. One ground for the complaint would be the attorney's apparent neglect of a legal matter entrusted to him. Further, the inquirer believes that Appellant's attorney may have billed Appellant for appearing at oral argument although he in fact did not appear.

The attorney asks whether it would be ethically permissible for him to directly contact Appellant for the purpose of inquiring whether Appellant had authorized his attorney not to appear at oral argument and whether Appellant was billed for opposing counsel's nonappearance.

It would be improper for the attorney to interject himself into the professional relationship of opposing counsel and Appellant. Although the Rules of Professional Conduct do not expressly forbid the contemplated questioning of Appellant, such intermeddling in the attorney-client relationship between opposing counsel and Appellant would be unprofessional, discourteous and inconsistent with principles underlying Rule 4-4.2 and Rule 4-7.4 [See current Rule 4-7.18]. Rule 4-4.2 provides that 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 consent of the other lawyer. Rule 4-7.4 [See current Rule 4-7.18], which is inapplicable here, forbids a lawyer to solicit employment from a prospective client for a particular matter when the lawyer knows or reasonably should know the prospective client has already obtained counsel in the matter. The purpose of both rules is to insulate the attorney-client relationship from interference by third parties.

If the inquiring attorney feels compelled to investigate the details of opposing counsel's employment agreement with Appellant, he should direct his inquiry to the lawyer. If the lawyer's response is unsatisfactory or confirms the inquiring attorney's suspicions, the attorney should refer to Rule 4-8.3(a), which provides:

A lawyer having knowledge that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer's honesty, trustworthiness, or fitness as a lawyer in other respects shall inform the appropriate professional authority.