Opinion #136. Direct Communication with Adverse Party After Litigation Is Complete

Issued by the Professional Ethics Commission

Date Issued: December 1, 1993

Question Presented

Bar counsel has requested an advisory opinion regarding the attorney’s conduct arising from the following set of facts. Attorney X represents a defendant in divorce litigation for over two years. Various post‑judgment matters are subsequently litigated and resolved over an additional period lasting several years. Attorney X continues to represent the defendant. Plaintiff is represented throughout by Attorney Y.

Some ten months after concluding the last piece of litigation, Attorney X intends to write the plaintiff directly instructing plaintiff to follow new arrangements for the payment of child support, with a copy of the letter to Attorney Y, still plaintiff’s last counsel of record.

Would Attorney X violate the Maine Bar Rules, particularly Rule 3.6(f), by communicating directly with the opposing party?

Opinion

During the course of a client’s representation, a lawyer shall not communicate or cause another to communicate on the subject of the representation with a party the lawyer knows to be represented by another lawyer in that matter unless the lawyer has the prior consent of the lawyer representing such other party or is authorized by law to do so.

Rule 3.6(f), Maine Bar Rules.

The pivotal inquiry is whether Attorney X at the time of the questioned communication “knows” that the plaintiff is represented by another lawyer in the “matter” at hand. It is difficult to conclude otherwise given the scenario under discussion. The subject of child support payments clearly lies within the scope of a domestic relations matter. Attorney X and Attorney Y had represented their respective clients in the matter over a period lasting several years. Attorney Y remained counsel of record for the plaintiff. In apparent deference to these circumstances, Attorney X intends to copy the correspondence to Attorney Y. Given that history, Attorney X plainly possesses actual knowledge that plaintiff continues to be represented by Attorney Y in the relevant matter. There are no contrary indications. Attorney X must direct the communication to plaintiff’s lawyer, Attorney Y, and not to the opposing client personally.

If plaintiff’s attorney, once contacted, no longer considers him/herself to represent that party, the attorney will certainly so advise Attorney X who may then contact the opposing party without running afoul of Rule 3.6(f).


Enduring Ethics Opinion

Enduring Ethics Opinion #136 [October 2014]