Can a government agency lawyer send the opposing lawyer's client copies of correspondence sent to that lawyer?

Plain-English summary

Opinion E-82-4 addressed a lawyer for a government agency who wanted to give the opposing lawyer's client copies of correspondence sent to the opposing lawyer, in two situations: a routine case where the client had a vital interest in the agency's activities, and a case where the agency lawyer suspected the opposing client had not been told of numerous precedents adverse to the client's position.

The committee concluded the practice would violate SCR 20.38, the rule barring communication with an adverse party known to be represented by counsel. It relied on ABA Informal Opinion 1348 (1975), which held it was not permissible for a lawyer to send a copy of a settlement offer to the opponent's client under DR 7-104 (codified in Wisconsin as SCR 20.34), and on a prior State Bar Memorandum Opinion (5/69) reaching the same result for a state-agency attorney. It also cited Abeles v. State Bar, 9 Cal. 3d 603, 510 P.2d 719 (1973), upholding the ban. The committee said the proper way to deal with an uncooperative or dilatory opposing attorney is to send copies of the correspondence to the court. As to the second situation, the committee noted that an advocate may urge any permissible construction of the law supportable by a good-faith argument (SCR 20.34(2)), so even where the opposing position lacks supporting precedent and faces adverse precedent the client may not know about, the agency lawyer still may not send the client copies of the correspondence.

Currency note

This opinion was issued in 1982, before Wisconsin's July 1, 2007 adoption of the revised Rules of Professional Conduct for Attorneys (the state's Ethics 2000 update), and it applies the former Code provisions cited in the opinion. Communication with a represented party is now governed by SCR 20:4.2 / Model Rule 4.2, and the limit on frivolous positions by SCR 20:3.1 / Model Rule 3.1. 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 Treat this page as historical context, not current guidance.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 opposing side's client on letters to opposing counsel?

A: No. The committee concluded that sending the opposing lawyer's client copies of correspondence addressed to that lawyer violates the no-contact rule, SCR 20.38.

Q: Does it matter that the client has a strong interest in the matter?

A: No. The committee reached the same result in the routine case where the client had a vital interest in the agency's activities; the no-contact rule still applied.

Q: What can a lawyer do about an opposing lawyer who is stonewalling?

A: The committee said the agency lawyer may send copies of the correspondence to the court, rather than to the opposing lawyer's client.

Background and rules framework

The opinion interpreted the former Wisconsin no-contact rule (SCR 20.38, codifying DR 7-104) and the advocate's good-faith-argument provision (SCR 20.34(2)). The current counterparts are the rule on communication with represented persons (SCR 20:4.2 / Model Rule 4.2) and the meritorious-claims rule (SCR 20:3.1 / Model Rule 3.1).

Citations and references

Rules of Professional Conduct:

• Wis. SCR 20.38 (former DR 7-104) (communication with a represented adverse party)
• Wis. SCR 20.34(2) (advocate's good-faith argument; no frivolous positions) (former Code)
• Model Rules 4.2, 3.1 (communication with represented persons; meritorious claims)

Cases:

• Abeles v. State Bar, 9 Cal. 3d 603, 510 P.2d 719 (Cal. 1973), upholding the ban on contact with a represented adverse party

Other opinions cited:

• ABA Informal Opinion 1348 (1975): copying an opponent's client on settlement correspondence
• State Bar of Wisconsin Memorandum Opinion 5/69: state-agency attorney corresponding with a represented opposing party

See also

• WI Ethics Op. E-84-10: Providing a Non-Party With a Copy of a Settlement Letter
• WI Ethics Op. E-91-6: Government Lawyer Contact With Represented Parties
• WI Ethics Op. E-95-1: Communicating With a Represented Government Agency

Source

• Landing page: https://www.wisbar.org/formembers/ethics/pages/formal-opinions.aspx
• Original PDF: https://www.wisbar.org/formembers/ethics/Ethics%20Opinions/E-82-4.pdf