When a represented adverse party contacts a lawyer directly and says they want to talk without their own counsel, may the lawyer communicate with them?

Plain-English summary

The inquiry concerned a lawyer's obligations when an adverse party, whom the lawyer knows to be represented by counsel, contacts the lawyer directly and says he or she wants to discuss the matter without the involvement of that counsel. The committee was of the opinion that the lawyer would have an ethical obligation to resolve the factual question of whether the adverse party continued to be represented.

The committee was of the opinion that, before having direct contact with the adverse party, the lawyer should require that the other lawyer has actually withdrawn, have the consent of the other lawyer to the direct contact, or have a letter from the adverse party discharging his or her counsel.

Currency note

This opinion was issued in 1989, before the Washington State Bar Association's adoption of the 2006 revisions to the Washington 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 Treat this page as historical context, not current guidance.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: A represented opposing party calls me and says they want to deal with me directly. Can I just talk to them?

A: Not without first resolving whether they are still represented. Under this 1989 opinion, the lawyer must confirm the other counsel has withdrawn, get that counsel's consent, or obtain a letter from the party discharging the counsel before direct contact.

Q: Is the adverse party's say-so that they want to skip their lawyer enough?

A: No. The committee treated the party's wish to talk directly as the start of the inquiry, not the answer; the lawyer still has to establish that the representation has actually ended or that the other counsel consents.

Q: What rule governs this?

A: RPC 4.2, the no-contact rule, which the committee read to require resolving the representation question before any direct communication with the adverse party.

Background and rules framework

RPC 4.2, Washington's version of ABA Model Rule 4.2, bars a lawyer from communicating about the subject of the representation with a person the lawyer knows to be represented by another lawyer, absent that lawyer's consent. The committee applied the rule to a party-initiated contact: the party's desire to talk does not by itself lift the bar. The lawyer must verify withdrawal, secure opposing counsel's consent, or obtain written confirmation that the party has discharged counsel.

Citations and references

Rules of Professional Conduct:

• ABA Model Rule 4.2 (communication with person represented by counsel)
• Washington RPC 4.2

See also

• WA Ethics Op. 1274: Contacting City Employees
• ABA Formal Op. 92-362: Settlement Contact, Rule 4.2

Source

• Landing page: https://ao.wsba.org/print.aspx?ID=387

Original opinion text

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

The Committee reviewed your inquiry concerning a lawyer's obligations when contacted by an adverse party whom the lawyer knows to be represented by counsel, and the adverse party states that he or she wants to discuss the matter directly without the involvement of his or her counsel. The Committee was of the opinion that the lawyer would have an ethical obligation to resolve the factual question of whether the adverse party continued to be represented by counsel. The Committee was of the opinion that before having direct contact with an adverse party, the lawyer should require that the other lawyer has actually withdrawn, have the consent of the other lawyer to have direct contact with the adverse party, or have a letter from the adverse party discharging his or her counsel.