Bar Counsel Notes: Communications with Person Represented by Counsel

Lawyer has a sophisticated business client. Opposing counsel represents non-profit entity and the two sides are discussing settlement of their dispute. The clients have engaged in direct negotiations but recently, opposing counsel called to tell you that your client just emailed him to "save some money on lawyer's fees" and deal directly with opposing counsel. Is that permissible? Is there anything ethically wrong with Lawyer allowing such contact between her client and opposing counsel?

Client's direct contact with opposing counsel is permissible under M. R. Prof. Conduct 4.2 (communication with represented person) but only if Lawyer permits it. For that reason, the authorization must come from Lawyer not her client. Another ethical concern is whether Lawyer is satisfied that client isn't going to prejudice his interests by engaging in such direct contact. Since client made the request and Lawyer views client as a sophisticated legal consumer, it is appropriate to follow client's instruction in this regard and allow the contact. Lawyer should prepare client for the discussion (if necessary) and ensure that there is something in the file, even if it is just an email, documenting that client had initiated the request for such contact and Lawyer's permission and advice about doing so.

*Disclaimer: The Informal Ethics Advisory Notes from Bar Counsel are intended as outreach by the office of Bar Counsel for the use and benefit of the Maine bar. These scenarios are drawn from actual telephone calls received by the attorneys in the office of Bar Counsel in the course of providing informal advice on the Code of Professional Responsibility, known as Bar Counsel's "Ethics Hotline." The particular advice in each case is limited with reference to the particular factual situation related by the inquiring attorney who must be inquiring about his or her own conduct or the conduct of a member of his or her firm. We do not provide any advice to one attorney about the conduct of another attorney unless they are members of the same law firm. In the telephone opinions, we usually explore and discuss additional factual variables. However, I have attempted to pare down these factual scenarios to make the email newsletter more readable and useful in a general sense. Obviously, that creates the risk that slight variations on the facts, to a learned reader, may give rise to a different analysis and conclusion.