Bar Counsel Notes: Communicating with adverse party.
Attorney X represents a divorce client who has filed a post-judgment action against his former wife. She had an attorney when the parties were last in court two years ago, but X does not now know if she still does. Is it proper for X to send his client's former spouse the motion to modify and accompanying paperwork directly, instructing her that if she retains counsel, she should have her attorney contact X about the motion?
The relevant Bar Rule is 3.6(f) (Communicating with Adverse Party) and a related ethical opinion is Advisory Opinion #136 (12/1/93). The key issue in such matters is whether attorneys in the position of X actually "know" at the time of the questioned communication that the opposing party is then represented by an attorney in the matter at hand. Under the facts in Opinion #136, counsel provided the attorney that had previously represented the opposing party with a copy of the pleading. That act of copying was deemed sufficient to constitute the attorney's knowledge that the opposing party was still represented by counsel and therefore Rule 3.6(f) prohibited such direct communication. In the present question, however, Attorney X has no such direct knowledge. Therefore, assuming there are no actual facts that would serve to provide X with such knowledge that the opposing party is currently represented by counsel, X may proceed to directly contact that party as suggested in the question, including the caveat language that if the party does actually have counsel, to have that attorney so notify X.
*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.