Can a lawyer let his own client contact the opposing represented party to negotiate a settlement without the other party's lawyer's consent?

Plain-English summary

In a personal injury case arising from an auto accident, the defense lawyer (Attorney B) twice permitted his client, the defendant-driver, to telephone the plaintiff directly, a military officer in another state, to negotiate the excess portion of a settlement, both times without the knowledge of the plaintiff's lawyer (Attorney A) and after inconclusive negotiations among counsel. Confusion resulted over what the plaintiff had agreed to accept, and Attorney A protested. The inquiry asked whether a lawyer may allow his client to contact the adverse party to negotiate settlement without the knowledge or permission of the adverse party's lawyer, even where the parties had once been friends.

The opinion concluded that the parties themselves may communicate with each other, with or without their lawyers' consent, about any matters they deem appropriate, including efforts to negotiate a resolution that may then be reported to their lawyers. At the same time, Rule 7.4(a) prohibits a lawyer from communicating, or causing another to communicate, on the subject of the representation with a party the lawyer knows to be represented, without the other lawyer's prior consent or authorization by law. The opinion drew the line at causation: although a lawyer may allow or permit his client's contact with the opposing represented party, the lawyer may not cause it, by active encouragement, client preparation, or personal participation, so as to do indirectly what Rule 7.4(a) forbids directly. The lawyer must distinguish active encouragement and participation from passive acquiescence, and it is improper to use the client, or any other agent of the lawyer, to communicate with the opposing represented party in violation of the rule. The opinion stated that it supersedes CPR 150.

Currency note

This opinion was issued in 1991, before the North Carolina State Bar's adoption of the 2003 revisions to the Rules of Professional Conduct. The opinion now carries an editor's note directing readers to Rule 4.2(a) of the Revised 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 Treat this page as historical context, not current guidance.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, deadline, or requirement mentioned here.

Common questions

Q: Can the parties to a case talk to each other directly about settlement?

A: Yes. The opinion held that opposing parties may communicate with each other, with or without their lawyers' consent, including to negotiate a resolution they can then report to their lawyers.

Q: Can a lawyer let his client make that contact?

A: Yes, passively. The opinion held a lawyer may allow or permit his client's direct contact with the opposing represented party.

Q: What can the lawyer not do?

A: The opinion held the lawyer may not cause the contact through active encouragement, client preparation, or personal participation, because that would accomplish indirectly what Rule 7.4(a) bars him from doing directly, and using the client as the lawyer's agent is improper.

Background and rules framework

The opinion applied North Carolina Rule 7.4(a), the no-contact rule barring a lawyer from communicating, or causing another to communicate, with a represented party about the matter without the other lawyer's consent (corresponding to Model Rule 4.2). The analysis turns on the distinction between the lawyer's passive acquiescence in party-to-party contact, which is permitted, and the lawyer's active orchestration of it, which is not.

Citations and references

Rules of Professional Conduct:

• MR 4.2 (communication with a represented person)
• North Carolina Rule 7.4(a) (communicating or causing another to communicate with a represented party)

Other opinions cited:

• North Carolina CPR 150 (superseded by this opinion)

See also

• NC Ethics Op. RPC 128: communication with an adverse corporation's house counsel
• NC Ethics Op. RPC 132: communications with government officials

Source

• Landing page: https://www.ncbar.gov/for-lawyers/ethics-and-governing-rules/ethics-opinions/opinions/rpc-119/

Original opinion text

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

Editor's Note: But see Rule 4.2(a) of the Revised Rules.

Inquiry:

Attorney A represented a passenger who suffered serious injuries when thrown from an auto driven by a fraternity friend who was represented by Attorney B. Attorney B also represented the father of the driver under family purpose allegations. Attorney C represented the liability carrier. The injuries sustained by the plaintiff were severe and the liability carrier indicated that it would pay its limits. The principal issue was the contribution of the driver and his father. A few days before the scheduled trial and after inconclusive negotiations between the attorneys on the excess aspect, Attorney B permitted his client, the driver, to telephone Attorney A's client who was a military officer in another state in an effort to negotiate a settlement. Attorney A had no knowledge of the communication until receiving a call from his client. Confusion resulted over what the plaintiff agreed to accept. Attorney A protested to Attorneys B and C concerning the direct communication with his client. Again, without the knowledge of Attorney A but with the permission of Attorney B, the defendant-driver contacted Attorney A's client and attempted to resolve the amount and method of paying the excess.

Is it permissible for an attorney to allow his client to contact the adverse party and attempt to negotiate settlement without the knowledge or permission of the attorney for the adverse party, even though at one time the parties may have been close friends?

Opinion:

Yes. Opposing parties themselves may communicate with each other with or without the consent of their lawyers about any matters they deem appropriate. Such communications may include efforts to negotiate a resolution of a controversy between the parties, the results of which may be reported to the parties' lawyers. At the same time Rule 7.4(a) provides: "During the course of his representation of a client, a lawyer shall not: (1) 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 by law to do so." Although client contact with the opposing represented party can be allowed or permitted by the attorney, the attorney cannot cause (by active encouragement, client preparation, or personal participation) such communication so as to accomplish indirectly what he or she could not do directly due to the prohibition of Rule 7.4(a). The lawyer must be careful to distinguish between active encouragement and participation on the one hand and passive acquiescence on the other. It is improper for the attorney to use his or her client as an agent, or to use any other actual agent of the attorney, to communicate with the opposing represented party in violation of Rule 7.4(a).

This opinion supersedes CPR 150.