Bar Counsel Notes: Communicating with adverse party/statutory service

Attorney X is preparing to file some documents in accordance with a statute that uses language appearing to require service to be directly made on the opposing party. X knows that party is represented by counsel. How does X comply with the statute and not violate Bar Rule 3.6(f)?

This question points to a specific exception to the prohibition in Rule 3.6(f) which normally requires an attorney to not communicate on the subject matter of the representation with a party the attorney knows to be represented by counsel. The Rule specifically makes that prohibition inapplicable when such direct communication with that party is authorized (and arguably required) by law, as it is in this case. Advisory Opinion #93 (2/15/89) discusses this issue, and contains an important caveat: when Attorney X makes that authorized direct service on that represented party, X must also mail a contemporaneous informational copy to that party's attorney.

*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.