Can defense counsel settle directly with an unrepresented non-party, and can the lawyer relay messages to the represented plaintiff through that person?
Apply this to your situation
This page answers the general question as of 1996. 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
The inquiry came from defense counsel in an automobile/personal injury lawsuit. The lawyer asked whether the Rules permit communicating and attempting to settle a claim with the registered owner of the vehicle, who was the plaintiff's father, was not a party, and was not represented by counsel.
The committee concluded that the Rules do not prohibit communicating independently with, or attempting to settle with, a person who is not represented by counsel. It added that, particularly because of the familial relationship, care should be taken to comply with RPC 3.4(a), 4.1(a), 4.3, and 4.4. On the second question, whether the lawyer could communicate indirectly with the plaintiff through the unrepresented father, the committee concluded that RPC 4.2 and RPC 8.4(a) and (b) prohibit using the father as a conduit to communicate indirectly with the represented plaintiff.
Currency note
This opinion was issued in 1996, before the Washington State Bar Association's adoption of the 2006 revisions to the 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 Treat this page as historical context, not current guidance.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: Can a lawyer settle directly with an unrepresented person who is not a party?
A: The committee concluded the Rules do not prohibit communicating with, or attempting to settle with, an unrepresented non-party, with care under RPC 3.4(a), 4.1(a), 4.3, and 4.4 given the family relationship.
Q: Can the lawyer pass settlement messages to the represented plaintiff through that person?
A: No. The committee concluded RPC 4.2 and RPC 8.4(a) and (b) prohibit using the unrepresented father as a conduit to communicate indirectly with the represented plaintiff.
Q: Why did the family relationship matter?
A: The committee flagged it as a reason for added care in complying with the rules on fairness and dealings with unrepresented persons (RPC 3.4(a), 4.1(a), 4.3, and 4.4), without barring the direct communication itself.
Background and rules framework
The opinion applied the no-contact rule, Washington RPC 4.2 (communication with a represented person, ABA Model Rule 4.2), to bar indirect contact through a third person, together with RPC 8.4(a) and (b) (violating the rules through the acts of another and committing a criminal act, ABA Model Rule 8.4). For the permitted direct contact with the unrepresented non-party, it pointed to RPC 4.3 (dealing with an unrepresented person), RPC 4.1(a) (truthfulness in statements to others), RPC 3.4(a) (fairness to opposing party and counsel), and RPC 4.4 (respect for the rights of third persons), each corresponding to the like-numbered ABA Model Rule.
Citations and references
Rules of Professional Conduct:
- ABA Model Rule 4.2 (communication with represented persons); Washington RPC 4.2
- ABA Model Rule 4.3 (dealing with unrepresented person); Washington RPC 4.3
- ABA Model Rule 4.1 (truthfulness in statements to others); Washington RPC 4.1(a)
- ABA Model Rule 3.4 (fairness to opposing party and counsel); Washington RPC 3.4(a)
- ABA Model Rule 4.4 (respect for rights of third persons); Washington RPC 4.4
- ABA Model Rule 8.4 (misconduct); Washington RPC 8.4(a), 8.4(b)
See also
- WA Ethics Op. 1000: Contact With Represented Party
- WA Ethics Op. 1307: Adverse Party Contacts You Directly
- WA Ethics Op. 1601: Advising Witnesses and Defendants
Source
- Landing page: https://ao.wsba.org/print.aspx?ID=1116
Original opinion text
Reproduced from the official source for research purposes. The linked source is authoritative.
Advisory Opinion: 1669
Year Issued: 1996
RPC(s): RPC 3.4(a); 4.2; 4.1(a); 4.3; 8.4(a); 8.4(b)
Subject: Communication with unrepresented parent of party; indirect communication with represented party
The Committee reviewed your inquiry regarding whether the Rules of Professional Conduct permit you, in your role as defense counsel, to communicate and attempt to settle a claim with the registered owner of the vehicle involved in an automobile/personal injury lawsuit. The registered owner is the plaintiff's father, is not a party to the lawsuit, and is not represented by counsel. The Committee concluded that the Rules do not prohibit you from communicating independently with, nor attempting to settle with, a person who is not represented by counsel. However, particularly because of the familial relationship involved, care should be taken to comply with Rules 3.4(a), 4.1(a), 4.3, and 4.4.
In addition, you asked whether it was permissible to indirectly communicate with plaintiff through the plaintiff’s unrepresented father. The Committee decided that Rules 4.2 and 8.4(a) and (b) prohibit you from using the plaintiff’s father as a conduit to communicate indirectly with the represented plaintiff
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