Can a party's lawyer give a settlement letter to the opposing party's unrepresented relative, and can that relative be used to pass it to the represented opposing party?
Apply this to your situation
This page answers the general question as of 1984. Ezel answers yours: whether it's allowed on your facts, under the current rules of professional conduct in your state, with citations.
Plain-English summary
Opinion E-84-10 involved a contemplated wrongful death matter. Party A's husband died in an accident, and Party A was considering an action against the estate (Party B) of another person who died in the same accident. Counsel for both sides were in settlement negotiations, with no claims yet filed. Party A's father-in-law had taken a continuing personal interest, at one point meeting for three hours with both counsel to review the accident facts; he was not represented by either lawyer, had no separate counsel, and was not and was not reasonably expected to become an interested or adverse party. Party B had written a 30-page settlement discussion letter. The question was whether Party B's counsel could give the father-in-law a copy of that letter, or advise him it existed, and on what conditions.
The committee concluded that, generally, a lawyer may communicate with a person unrepresented by counsel in a civil or criminal matter without opposing counsel's consent, unless that person is a party. Accordingly, with the client's (Party B's) consent, counsel for Party B may provide the father-in-law a copy of the settlement letter or advise him it exists. The committee added a competing consideration: counsel for Party B may not discuss the settlement letter directly with the widow (Party A) unless Party A's counsel consents (SCR 20.34(2)(o); SCR 20.38(1)), and assuming Party A's counsel would not consent, Party B's counsel cannot use the father-in-law to accomplish what it cannot do directly, that is, communicate with the widow about the settlement letter.
Currency note
This opinion was issued in 1984, before Wisconsin's July 1, 2007 adoption of the revised Rules of Professional Conduct for Attorneys (the state's Ethics 2000 update), and it analyzes conduct under the former Code. Communication with represented and unrepresented persons is now analyzed under SCR 20:4.2 and 20:4.3 / Model Rules 4.2 and 4.3. 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 Treat this page as historical context, not current guidance.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 counsel give a settlement letter to the opposing party's unrepresented relative?
A: The committee concluded yes, with the client's consent, because the relative is unrepresented and is not a party.
Q: Can counsel use that relative to pass the letter or its contents to the represented opposing party?
A: No. The committee concluded counsel cannot use the relative to do indirectly what the no-contact rule forbids directly, namely communicate with the represented opposing party about the letter.
Q: What if the opposing party's counsel would not consent to direct contact?
A: Then counsel may not communicate with the opposing party about the letter at all, including through the unrepresented relative.
Background and rules framework
The opinion interpreted the former Code's no-contact rule for represented parties (SCR 20.38(1)) and a related provision (SCR 20.34(2)(o)), together with the latitude to deal with unrepresented non-parties. These subjects are now addressed by SCR 20:4.2 / Model Rule 4.2 (represented persons) and SCR 20:4.3 / Model Rule 4.3 (unrepresented persons).
Citations and references
Rules of Professional Conduct:
- Wis. SCR 20.38(1) / Model Rule 4.2 (communication with a represented party) (former Code provision)
- Wis. SCR 20.34(2)(o) / Model Rule 4.3 (dealings with others) (former Code provision)
Other opinions cited:
- Wisconsin Formal Opinion E-82-10
- ABA Informal Opinions 1410 (Feb. 14, 1978) and 663
See also
- WI Ethics Op. E-84-15: Prosecutor Communicating With a Represented Complainant
- WI Ethics Op. E-91-4: Contact With the Opposing Party's Expert Witness
- WI Ethics Op. E-87-2: Opposing Expert's Contact With a Represented Party
Source
- Landing page: https://www.wisbar.org/formembers/ethics/pages/formal-opinions.aspx
- Original PDF: https://www.wisbar.org/formembers/ethics/Ethics%20Opinions/E-84-10.pdf
Get today's answer for your situation
You just read a 1984 opinion on this question. Ezel checks the current rules of professional conduct in your state and answers your specific situation, with citations.
Opens in Ezel Pro. Every answer cites the rules it relies on.