Can a lawyer send a contractually required notice directly to the opposing party in a real estate deal when that party may be represented by a lawyer?

Plain-English summary

A lawyer represented a prospective real estate purchaser under a contract providing that, if the purchaser could not obtain a mortgage commitment within a set time, the purchaser had to notify "the seller" within a certain period or forfeit the earnest money. The lawyer had "hearsay" information that the seller was represented by counsel and asked whether it was proper to send the required notice directly to the seller.

The committee concluded it was proper. Former Rule 7-104 barred a lawyer from communicating, on the subject of the representation, with a party known to be represented by counsel, unless the other lawyer consents or the lawyer is authorized by law to do so. The committee read the terms of the contract as authorizing the purchaser's lawyer to deliver the contractually required notice directly to the seller.

The committee cautioned, however, that it would be improper for the lawyer to expand that communication beyond the notice the contract specifically required (for example, to make a counter-offer or seek an extension of time) until the lawyer knew whether the seller was actually represented. Because the inquiry described only hearsay that the seller was represented, the committee added that, if the purchaser's lawyer had reliable information that the seller was represented, any communication beyond the contractually required notice should be directed to the seller's counsel.

Currency note

This opinion was issued in December 1985, under the former Illinois Code of Professional Responsibility and before Illinois adopted the 1990 (and later 2010) Rules of Professional Conduct. The ISBA Board of Governors affirmed the opinion in July 2010 as generally consistent with the 2010 Rules (Rules 4.2 and 4.3), 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 Treat this page as historical context, not current guidance.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 send a contract-required notice directly to a represented opposing party?

A: The opinion concluded yes; the committee read the contract as authorizing the direct notice, which former Rule 7-104 permits where the lawyer is authorized by law to communicate.

Q: Can the lawyer add other things to that notice, like a counter-offer?

A: Per the opinion, no; the lawyer may not expand the communication beyond the contractually required notice until the lawyer knows whether the seller is actually represented.

Q: What if the lawyer has reliable information the seller is represented?

A: The committee said any communication beyond the contractually required notice should then be directed to the seller's counsel.

Background and rules framework

The opinion applied former Illinois Code Rule 7-104 (communicating with a represented or unrepresented opposing party), recognizing the "authorized by law" exception as satisfied by the contract's notice term. The Board's 2010 affirmation maps the analysis to current Illinois Rules of Professional Conduct 4.2 (communication with a represented person) and 4.3 (dealing with an unrepresented person), corresponding to ABA Model Rules 4.2 and 4.3.

Citations and references

Rules of Professional Conduct:

• Illinois Code Rule 7-104 (communication with an opposing party, applied in the opinion)
• Illinois RPC 4.2 and 4.3 (2010 equivalents per the Board's affirmation)
• MR 4.2 (communication with a represented person); MR 4.3 (unrepresented person)

Other opinions cited:

• ISBA Opinion 837

See also

• IL Ethics Op. 23-04: Pro Se Lawyer and Rule 4.2 Contact
• ISBA Ethics Op. 88-03: Advising an Unrepresented Spouse
• ISBA Ethics Op. 86-11: Appearance for Unrepresented Spouse

Source

• Landing page: https://www.isba.org/ethics/opinions/8505