Can a lawyer negotiate directly with the opposing party after that party has discharged his own attorney, even if the discharged attorney claims the discharge was wrongful?

Plain-English summary

Attorney A had a written contract to represent B in a claim against X, and had been discussing the claim with Y, X's attorney. B then sent A a registered letter cancelling A's employment, told Y of the cancellation, and said he wanted to negotiate directly or through another attorney. When Y asked A his position, A replied that B had attempted to break the contract but that it remained in force. Y asked whether, knowing of the contract and the attempt to break it, he must continue dealing with A or could deal directly with B; no suit had been filed.

The Board of Governors concluded that B, the client, has the power, if not necessarily the right, to terminate A's employment, at which point A's representation of B ceases, with B liable in damages to A if the termination was wrongful. Because A is no longer counsel for B, if Y's duty to his client X requires him to negotiate with B and he does so, Y's conduct does not contravene Rule 11. (The official page for this opinion appends, after Opinion 39's text, the unrelated 1965 Opinion No. 231 on listing corporate counsel in advertisements; only Opinion 39 is summarized and reproduced here.)

Currency note

This opinion was issued in 1932, decades before Oklahoma replaced its original Rules of Professional Conduct (patterned on the ABA Canons of Professional Ethics) with the Oklahoma Rules of Professional Conduct (adopted 1988) and the later Ethics 2000 revisions. The rule cited here, Rule 11, belongs to that superseded canon-era code; the modern counterpart is the rule on communication with a represented person. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule mentioned here.

Common questions

Q: Could a lawyer deal directly with an opposing party who fired his own attorney?

A: The Board concluded yes. Once the client terminated the attorney's employment, that attorney was no longer counsel, so Rule 11's bar on contacting a represented party did not apply.

Q: Did the discharged attorney's claim of wrongful discharge change the answer?

A: No. The Board treated the client as having the power to terminate the employment; a wrongful termination gives the attorney a damages claim but does not keep him as counsel.

Q: How does this compare with Opinion 38?

A: Opinion 38 found a Rule 11 violation where the opposing party was still represented. Opinion 39 turns on the party no longer being represented after discharging his attorney.

Background and rules framework

The opinion applied Rule 11 of the then-current Oklahoma Rules of Professional Conduct, which barred communicating about a controversy with a party represented by counsel. The Board treated the client's discharge of his attorney as ending the representation, so the rule no longer applied. This rule was patterned on the ABA Canons of Professional Ethics in force at the time and is the predecessor of the modern rule on communication with represented persons.

Citations and references

Rules of Professional Conduct:

• Rule 11 (1929 Oklahoma Rules of Professional Conduct): a lawyer should not communicate about the controversy with a party represented by counsel.

See also

• Okla. Bar Ethics Op. 38: Settling Directly With a Represented Opposing Party
• ABA Formal Op. 502: Communication With a Represented Person by a Pro Se Lawyer
• ABA Formal Op. 472: Communication With a Limited-Scope Client

Source

• Landing page: https://www.okbar.org/ethics/ethics-opinion-no-39/

Original opinion text

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

Adopted October 28, 1932

The following request for an opinion has been received by the Board:

"A an attorney has a written contract of employment from B to represent B in the negotiation, settlement and litigation of an alleged claim B has against X. Y as attorney for X has had under discussion with A as attorney for B the alleged claim. B has seryed notice by registered letter upon his attorney A of the cancellation of A's contract of employment and has advised Y as attorney for X of this cancellation and B's desire to negotiate the alleged claim direct or through another attorney. Y as attorney for X has notified attorney A of notice being given to Y of the cancellation of the contract and has requested A to advise what his position in the case is. Attorney A has replied that B has attempted to break the contract but that it is still in force and effect. What position does this place Y in as an attorney for X? No suit has been filed. Since attorney Y knows of the existence of the contract between B and his attorney A and also of the attempt to break the contract by B, must attorney Y carry on the further discussion with attorney A, or is attorney Y privileged to discuss B's case with B in accordance with B's desire? It is a matter in which X has instructed attorney Y to attempt to dispose of but Y does not know with whom he should carry on further discussion. An opinion upon this matter would be greatly appreciated."

B, the client, has the power, if under the circumstances not the right, to terminate A's contract of employment, whereupon A's representation of B ceases, B being liable in damages to A if the contract is wrongfully terminated.

Under the circumstances if Y's duty to his client X requires that he negotiate with B, and he does so, Y's conduct is not in contravention of Rule 11 of the rules of professional conduct, because A is no longer counsel for B in the premises.