When Opposing Counsel Goes Dark—Can You Communicate Directly With the Adverse Party?
I have taken multiple calls at the WSBA Ethics Line from attorneys who feel stymied because opposing counsel isn’t responding and hasn’t terminated their attorney-client relationship. In one instance, the caller said the opposing party wanted to work directly with him, but the caller could not get confirmation from opposing counsel that contact was permitted.
RPC 4.2 states that in representing a client, a legal professional shall not communicate about the subject of the representation with a person known to be represented by another lawyer in the matter, unless they have the consent of the other lawyer or is authorized to do so by law or court order. Comment 3 states that the rule applies even though the person represented by a legal professional initiates or consents to the communication. (Be sure to read the rule and its comments in their entirety.)
So how do you move forward?
The safest course of action is to ask the court for an order authorizing you to have direct contact with the adverse party. In transactional matters; however, filing a court action can be impracticable.
A possible approach is to consider that RPC 4.2’s restriction only applies when you know that a person is represented. The term “knows” is defined in RPC 1.0A as “actual knowledge of the fact in question.” A person’s knowledge may be inferred from circumstances.
One might argue that after several attempts to contact opposing counsel—including warning of the consequence of a failure to respond, and waiting a reasonable time for a response—a lawyer can justifiably conclude that they do not “know” that the adverse party is represented, since a reasonable attorney would have responded under those circumstances. Circumstances have abrogated the initial knowledge of representation. If considering that approach, a lawyer should document their repeated efforts at contact and warning of the consequence of a nonresponse. Keep in mind, however, that unless mandated by law or court order, no ethics rule specifies that attorneys have to respond to other attorneys. Lack of communication can be a delaying tactic by counsel, or another intentional strategy.
If direct contact with the adverse party is made, you should question the party again to see if they are represented. If so, stop further communication and tell the party to refer the communication to their counsel. If the party says they terminated the representation, you should ask for a letter or email documenting the termination. Remember, RPC 4.2 applies even if the party initiates or consents to the communication.
In a nutshell, if opposing counsel isn’t responding:
- Document your repeated efforts at contact, including your statement of the consequence of continued nonresponse.
- Wait a reasonable amount of time.
- To be safe, get a court order authorizing direct contact.
- If that’s not possible, and you intend to make direct contact with the adverse party, make sure you tell them to refer the communication to their attorney if they are still represented, and ask for documentation of termination if they say they aren’t.
As always, if you have concerns, contact the WSBA Ethics Line at 800-945-9722, ext. 8284.