Can a lawyer write directly to a represented adverse party, and does RPC 8.3 require reporting another lawyer's misconduct?

Plain-English summary

The inquiry described a lawyer representing a garnishee defendant and judgment debtor who contacted the opposing party, who was represented by counsel, directly by letter. On those hypothetical facts the committee concluded that RPC 4.2 would make it improper for the lawyer representing the garnishee defendant to contact the adverse party directly about the matter when the lawyer knew that party was represented by a lawyer.

On the reporting question, the committee concluded that the use of the word "should" in RPC 8.3 does not require a lawyer to report misconduct by another lawyer. The committee said it did not fully understand the last question in the inquiry, but concluded that if the defendant's lawyer had consented to the opposing lawyer contacting his client directly, the opposing lawyer could do so under RPC 4.2.

Currency note

This opinion was issued in 1986, before the 2006 revisions to the Washington Rules of Professional Conduct. Both RPC 4.2 (communication with a represented person) and RPC 8.3 (reporting professional misconduct) were later renumbered and amended, and the current RPC 8.3 uses mandatory phrasing rather than "should." Treat this page as historical context, not current guidance.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 write directly to an adverse party who has a lawyer?

A: No. The committee concluded that RPC 4.2 made it improper to contact the adverse party directly about the matter when the lawyer knew that party was represented by counsel.

Q: Under this opinion, did RPC 8.3 require a lawyer to report another lawyer's misconduct?

A: No. The committee concluded that the use of the word "should" in RPC 8.3 does not require a lawyer to report misconduct by another lawyer.

Q: Could the opposing lawyer contact the represented party if the party's own lawyer agreed?

A: Yes. The committee concluded that if the defendant's lawyer had consented to the opposing lawyer contacting his client directly, the opposing lawyer could do so under RPC 4.2.

Background and rules framework

The opinion interprets two Washington rules as they stood in 1986: RPC 4.2 on communication with a person represented by counsel (corresponding to Model Rule 4.2), and RPC 8.3 on reporting professional misconduct (corresponding to Model Rule 8.3). The committee read RPC 4.2 to bar direct contact with a known-represented adverse party absent consent of that party's lawyer, and read the word "should" in the then-current RPC 8.3 as not imposing a mandatory reporting duty.

Citations and references

Rules of Professional Conduct:

• Washington RPC 4.2 (communication with a represented person), corresponding to Model Rule 4.2.
• Washington RPC 8.3 (reporting professional misconduct), corresponding to Model Rule 8.3.

See also

• WSBA Ethics Op. 1000: contact with an opposing party represented by counsel
• WSBA Ethics Op. 967: contacting the heirs of a deceased contract party
• WSBA Ethics Op. 912: reporting an employee's misappropriation from a trust

Source

• Landing page: https://ao.wsba.org/print.aspx?ID=83

Original opinion text

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

Advisory Opinion: 972
Year Issued: 1986
RPC(s): RPC 4.2,;8.3
Subject: Communication with garnishment plaintiff represented by counsel; reporting professional misconduct

A lawyer representing a garnishee defendant and judgment debtor contacted the opposing party, who was represented by counsel, directly by letter. The Committee was of the opinion based upon the hypothetical facts set out in your inquiry that Rule 4.2 of the Rules of Professional Conduct would make it improper for the lawyer representing the garnishee defendant to directly contact the adverse party regarding that matter when he knew the adverse party was represented by a lawyer. The Committee was further of the opinion that the use of the word "should" in RPC 8.3 does not require that a lawyer report misconduct by another lawyer. The Committee did not fully understand the last question set out in your inquiry, but did reach the conclusion that if the defendant's lawyer had consented to the opposing lawyer directly contacting his client, the opposing lawyer could do so pursuant to RPC 4.2.