When opposing counsel won't respond, can a lawyer copy the represented party directly, or tell the client to contact the other party?

Plain-English summary

Plaintiff's counsel was negotiating settlement with defendant's counsel, who claimed to be very busy and was hard to reach. Suspecting that his settlement proposals were not being relayed to the defendant, plaintiff's counsel asked two questions: whether he could copy the defendant directly on proposals sent to defense counsel, and whether he could advise the plaintiff to contact the defendant personally about the offers.

On the first question, the committee concluded he could not. Rule 4.2 bars communication about the subject of the representation with a party the lawyer knows to be represented by another lawyer, absent that lawyer's consent or legal authorization, and that bar covers copying the represented party on written letters directed to that party's attorney (citing ABA Formal Opinion No. 92-362). On the second, the committee drew a distinction: Rule 4.2, unlike former DR 7-104(A)(1), omits the phrase "cause another to communicate," which indicates a lawyer is free to advise the client that there is no ethical prohibition against the client contacting the other party. Rule 1.4 in fact directs the lawyer to keep the client informed so the client can make informed decisions. The committee cautioned, however, that Rule 8.4(a) bars a lawyer from violating the rules through the acts of another, so the rule cannot be read to let the lawyer orchestrate indirectly what Rule 4.2 forbids directly; it should not, though, preclude the lawyer from fairly advising the client of the client's rights in furtherance of the representation.

Currency note

This opinion was issued in 1993, before the South Carolina Bar's adoption of the 2005 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 Treat this page as historical context, not current guidance.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 copy the represented party on letters to opposing counsel?

A: No. The committee concluded Rule 4.2 bars copying a represented party on written letters directed to that party's attorney, absent the attorney's consent.

Q: Can the lawyer tell his own client to contact the other party directly?

A: Yes, within limits. The committee found Rule 4.2 omits former DR 7-104's "cause another to communicate" language, so the lawyer may advise the client that no ethical rule bars the client from contacting the other party, and Rule 1.4 supports keeping the client informed.

Q: What is the limit on advising the client to make contact?

A: Rule 8.4(a). The committee cautioned that a lawyer may not do indirectly, through the client, what Rule 4.2 forbids the lawyer from doing directly.

Background and rules framework

The opinion applied Rule 4.2 (communication with person represented by counsel), Rule 8.4(a) (violating the rules through the acts of another), and Rule 1.4 (communication with the client), which correspond to like-numbered Model Rules. The committee contrasted Rule 4.2 with former DR 7-104(A)(1) and relied on ABA Formal Opinion No. 92-362.

Citations and references

Rules of Professional Conduct:

• South Carolina RPC 4.2 / Model Rule 4.2: a lawyer shall not communicate about the subject of the representation with a represented party absent the other lawyer's consent or legal authorization.
• South Carolina RPC 8.4(a) / Model Rule 8.4(a): a lawyer shall not violate the rules through the acts of another.
• South Carolina RPC 1.4 / Model Rule 1.4: a lawyer shall keep the client reasonably informed and explain matters to permit informed decisions.

Other opinions cited:

• ABA Formal Opinion No. 92-362.

See also

• SC Bar Ethics Op. 93-21: Calling Referral-Service No-Shows
• SC Bar Ethics Op. 93-20: A Settlement Conditioned on Not Testifying
• SC Bar Ethics Op. 93-29: A Secretary Joining Opposing Counsel

Source

• Landing page: https://www.scbar.org/for-lawyers/quicklinks/legal-resources/ethics-advisory-opinions/ethics-advisory-opinion-93-16/

Original opinion text

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

UPON THE REQUEST OF A MEMBER OF THE SOUTH CAROLINA BAR, THE ETHICS ADVISORY COMMITTEE HAS RENDERED THIS OPINION ON THE ETHICAL PROPRIETY OF THE INQUIRER’S CONTEMPLATED CONDUCT. THIS COMMITTEE HAS NO DISCIPLINARY AUTHORITY. LAWYER DISCIPLINE IS ADMINISTERED SOLELY BY THE SOUTH CAROLINA SUPREME COURT THROUGH ITS COMMISSION ON LAWYER CONDUCT.

Ethics Advisory Opinion 93-16

Plaintiff's attorney filed suit, and the defendant's attorney filed an Answer and a Counterclaim. Settlement negotiations are ongoing between the two lawyers, but the defendant's lawyer claims to be very busy and it is difficult to contact him or get responses from him with regard to settlement overtures.

Questions:

1. Can the plaintiff's attorney copy the defendant himself on any settlement proposals sent to the defendant's attorney if he suspects such proposals have not been relayed to the defendant?
   2.If the plaintiff's attorney suspects that the defendant's attorney has not conveyed the offers to the defendant, may the plaintiff personally contact the defendant, either by in person, telephone, or mail with regard to these settlement offers?

Summary:

1. A lawyer may not communicate with another who is represented by counsel. This includes both in person communication and communication by mail, unless he has the consent of the other party's attorney or unless it is authorized by law. Rule 4.2; A.B.A. Formal Opinion No. 92-362.

2. Rule 4.2 unlike DR 7-104(A)(1) does not prohibit the lawyer from advising his client that the client may contact the other party directly as to whether the settlement offer has been conveyed. However, particular attention should be paid to Rule 8.4(a) which states that a lawyer may not do indirectly what the lawyer may not do directly. A.B.A. Formal Opinion No. 92-362.

Opinion:
Rule 4.1 states that "a lawyer shall not communicate about the subject of the representation with a party the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized by law to do so." In this given scenario there is no South Carolina case law that would allow for such communication. Rule 4.2 proscribes all communication with a represented party; thus, precluding copying the represented party on written letters directed to that party's attorney. The lawyer may contact the represented party only if that party's attorney so consents. A.B.A. Formal Opinion No. 92-362.

Rule 4.2, although similar to former DR 7-104(A)(1), omits the phrase or "cause another to communicate...". This would tend to indicate that a lawyer is free to advise his client that there is no ethical prohibition against the client contacting the other party. In fact, Rule 1.4 states that he should keep his client informed and should explain a matter to the extent necessary to permit the client to take informed decisions regarding the representation. A.B.A. Formal Opinion No. 92-362. However, Rule 8.4(a) states that a lawyer may not violate the rules of professional conduct through the acts of another.

In this given situation, Rule 8.4(a) should not be read to preclude the lawyer from fulfilling his duty as reasonably expected by the client, to fully and fairly advise the client of the client's rights in furtherance of the representation. A.B.A. Formal Opinion No. 92-362.