Does the no-contact rule only bar settlement talks with a represented party, or does it bar all communication, and can a lawyer still interview the other side's employees as witnesses?

Plain-English summary

The inquiry asked whether the first sentence of Canon 9, which said a member should not in any way communicate upon the subject of controversy with a party represented by counsel, referred only to communications designed to negotiate a compromise.

The committee answered that the quoted sentence prohibits counsel from communicating with a represented party for any purpose, not just to negotiate. It added that the rule does not preclude a member of the State Bar from interviewing a potential witness, other than a party to the suit, even though the witness may be an employee of a party, provided the lawyer makes a full disclosure of his connection with the litigation and explains the purpose of the interview. The vote was 7-0.

Currency note

This opinion was issued in 1948, under the former Texas Canons of Ethics, which the Texas Disciplinary Rules of Professional Conduct replaced effective January 1, 1990. Subsequent rule amendments or later opinions may have changed the analysis; communication with a represented person is now addressed by ABA Model Rule 4.2 and communication with an unrepresented person by Model Rule 4.3, and the modern rules treat certain employees of a represented organization differently from ordinary witnesses. Treat this page as historical context, not current guidance.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: Does the no-contact rule apply only when the lawyer wants to negotiate a settlement?

A: No. The committee held that Canon 9 bars communicating with a represented party for any purpose, not only to negotiate a compromise.

Q: Can a lawyer interview a witness who is an employee of the opposing party?

A: Under this opinion, yes, if the witness is not a party. The lawyer had to make full disclosure of his connection with the litigation and explain the purpose of the interview. (Modern rules treat some employees of a represented organization as off-limits, so verify against current Rule 4.2.)

Q: What conditions did the committee place on interviewing a non-party witness?

A: Full disclosure of the lawyer's connection with the litigation and an explanation of the purpose of the interview.

Background and rules framework

The opinion interprets former Texas Canon 9, the predecessor of the modern no-contact rule, applied to both communications with a represented party and interviews of non-party witnesses. The modern analogs are ABA Model Rule 4.2 (communication with a person represented by counsel) and Model Rule 4.3 (dealing with an unrepresented person), with the current rules drawing distinctions for employees of a represented organization that the Canon did not.

Citations and references

Rules of Professional Conduct:

• MR 4.2 (communication with a represented person), as the modern analog
• MR 4.3 (dealing with an unrepresented person), as the modern analog
• Texas Canon 9

See also

• TX Ethics Op. 18: The Employer's Lawyer Facing the Comp Claimant
• TX Ethics Op. 22: Communicating With the Court Outside Opposing Counsel's Presence

Source

• Landing page: https://www.legalethicstexas.com/resources/opinions/opinion-17/
• Original PDF: https://tcle-web.s3.amazonaws.com/public/documents/Opinion_17.pdf

Original opinion text

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

QUESTION PRESENTED

Whether the first sentence of Canon 9 reading, "A member should not in any way communicate upon the subject of controversy with the party represented by counsel" refers only to a communication by counsel with a design to negotiate a compromise.

18 Baylor L. Rev. 200 (1966)

NEGOTIATIONS WITH OPPOSITE PARTY - COMMUNICATIONS
An attorney is prohibited from communicating with a party represented by counsel for any purpose. An attorney may interview a potential witness, other than a party, even though the witness may be an employee of a party, where the attorney makes a full disclosure of his connection with litigation and explains the purpose of the interview.

Canon 9.

The quoted sentence prohibits counsel from communicating with a party represented by an attorney for any purpose. It does not, however, preclude a member of the State Bar from interviewing a potential witness, other than a party to the suit, even though such witness may be an employee of a party to the suit, where such attorney makes a full disclosure of his connection with litigation and explains the purpose of the interview. (7-0)

Tex. Comm. On Professional Ethics, Op. 17 (1948)