Can a landowner's lawyer try to settle an eminent domain case directly with the condemning authority's employees when that authority has its own counsel?

Plain-English summary

An eminent domain case had been tried and a final judgment entered. After argument but before an order on a post-trial motion, the landowner's lawyer communicated directly with employees of the condemning authority in an attempt to settle the case. The committee was asked whether the landowner's lawyer could bypass the condemning authority's counsel to settle directly with the authority.

The committee concluded he could not. Rule 7-104(a)(1) bars a lawyer, during representation, from communicating on the subject of the representation with a party he knows to be represented by counsel in the matter, unless he has that counsel's prior consent or is authorized by law (see EC 7-18). The committee distinguished Opinion 675, which permitted contacting a public official solely to obtain public records "and nothing more," from this attempt to settle. It agreed with ABA Informal Opinion 1377 that an opposing lawyer may not communicate with an employee of a municipal corporation who has power to commit that body in the situation, absent the designated counsel's consent or legal authorization.

The committee held that the settlement purpose did not change the result. Citing Opinion 192 (improper to correspond directly with a represented opposing party about a suit, including possible settlement, even copying that party's counsel) and ABA Informal Opinions 1373 and 1348 (improper to send a settlement offer copy to the other party even when counsel is copied, despite a belief that counsel would not transmit it), the committee found the direct contact improper. It also noted no provision of the Illinois Eminent Domain Act authorized the landowner's lawyer to communicate a settlement offer directly to the condemning authority's employees once litigation had commenced and counsel was retained.

Currency note

This opinion was issued in 1982, under the former Illinois Code of Professional Responsibility and before Illinois adopted the 2010 Rules of Professional Conduct. The ISBA Board of Governors affirmed the opinion in July 2010 as generally consistent with the 2010 Rule (Rule 4.2), while cautioning that the specific standards referenced may differ from the 2010 Rules. 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 Treat this page as historical context, not current guidance.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 or requirement mentioned here.

Common questions

Q: Can a lawyer settle directly with a represented agency's employees?

A: The opinion concluded no; under Rule 7-104(a)(1), the lawyer may not contact employees of a represented condemning authority about the matter without the prior consent of its counsel.

Q: Does it matter that the goal was to settle?

A: No. The committee held the settlement purpose did not change the result, citing prior opinions that direct settlement communications with a represented party are improper even when opposing counsel is copied.

Q: Is contacting a public body ever allowed?

A: Per the opinion, a narrow exception exists for contacting a public official solely to obtain public records "and nothing more" (Opinion 675), which the committee sharply distinguished from attempting to settle the case.

Background and rules framework

The opinion applied former Illinois Code Rule 7-104(a)(1) (the no-contact rule) and EC 7-18, drawing on Opinions 675 and 192 and ABA Informal Opinions 1348, 1373, and 1377, against the Illinois Eminent Domain Act. The Board's 2010 affirmation maps the analysis to current Illinois Rule of Professional Conduct 4.2 (communication with a person represented by counsel), corresponding to ABA Model Rule 4.2.

Citations and references

Rules of Professional Conduct:

• Illinois Code Rule 7-104(a)(1); EC 7-18 (applied in the opinion)
• Illinois RPC 4.2 (2010 equivalent per the Board's affirmation)
• MR 4.2 (communication with a represented person)

Statutes:

• Illinois Eminent Domain Act, Ill. Rev. Stat. ch. 47, Section 1 et seq. (1979)

Other opinions cited:

• ISBA Opinion 675: contacting a public official solely to obtain public records is permitted
• ISBA Opinion 192: improper to correspond directly with a represented party about a suit, including settlement
• ABA Informal Opinions 1348, 1373, 1377: direct settlement contact with a represented party, or a body's committing employee, is improper

See also

• ISBA Ethics Op. 13-09: Contacting Government Officials
• ABA Formal Op. 06-443: Contacting Inside Counsel
• ABA Formal Op. 502: Pro Se Lawyer and Rule 4.2

Source

• Landing page: https://www.isba.org/ethics/opinions/794