Can a lawyer communicate ex parte with a bank that provides collection services to the opposing party in a contract dispute?

Plain-English summary

The inquiry concerned an attorney's ex parte communication with a bank that provided contract collection services to the seller, in a dispute between the seller and the vendor on the contract.

The committee was of the opinion that such conduct would not violate RPC 4.2 unless the vendor's lawyer knows that the bank is represented by a lawyer. The committee tied the no-contact prohibition to the lawyer's knowledge that the bank itself was represented; absent that knowledge, contacting the seller's collection bank did not run afoul of the rule.

Currency note

This opinion was issued in 1987, before the 2006 revisions to the Washington Rules of Professional Conduct. The no-contact rule then numbered RPC 4.2 corresponds to Model Rule 4.2 and was rewritten in the current rules. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule mentioned here.

Common questions

Q: Does the no-contact rule reach a bank that just collects for the opposing party?

A: Per the opinion, not by itself. The committee was of the opinion that ex parte contact with the bank would not violate RPC 4.2 unless the lawyer knows the bank is represented by a lawyer.

Q: What turns the contact into a violation?

A: The lawyer's knowledge that the bank is represented by counsel. The committee made that knowledge the dividing line.

Background and rules framework

The opinion applies the no-contact rule then numbered Washington RPC 4.2, corresponding to Model Rule 4.2, which bars a lawyer from communicating about the matter with a person the lawyer knows to be represented by counsel. The committee read the rule to turn on the lawyer's knowledge that the bank, not just the opposing seller, was itself represented; without that knowledge, the ex parte contact with the seller's collection bank was permissible.

Citations and references

Rules of Professional Conduct:

• Washington RPC 4.2 (communication with a person represented by counsel), corresponding to Model Rule 4.2.

See also

• WSBA Ethics Op. 1000: contact with an opposing party represented by counsel
• WSBA Ethics Op. 967: contacting heirs of a deceased contract party
• ABA Formal Op. 95-396: communications with represented persons

Source

• Landing page: https://ao.wsba.org/print.aspx?ID=211

Original opinion text

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

Advisory Opinion: 1131
Year Issued: 1987
RPC(s): RPC 4.2
Subject: Communication with party represented by counsel; bank providing collection services to party

With regard to your inquiry concerning an attorney's ex parte communication with a bank providing contract collection services to the seller, in a dispute between the seller and vendor on the contract, it was the opinion of the Committee that such conduct would not violate RPC 4.2 unless the vendor's lawyer knows that the bank is represented by a lawyer.