Ethics Opinion

Opinion No. 82-8

August 1982

Summary: A lawyer who has developed a settlement position with a client should dissuade the client from discussing settlement with the adversary party directly unless counsel for the adversary party has consented to such a discussion. Likewise the lawyer should not send a copy of his settlement offer directly to the adversary party without its counsel's consent; nor should he permit his client to send its own letter repeating the settlement offer to the adversary party without its counsel's consent.

Facts: A lawyer has posed two questions with respect to the effect of DR 7-104(A)(1) on settlement negotiations in a litigated matter involving two clients. More particularly, he has asked whether it is his duty to tell D, the president of his client, the defendant, who wishes to contact P, the president of the plaintiff, in order to discuss settlement, not to do so. In addition, he wishes to know whether D may send to P either a copy of a settlement letter previously sent by the lawyer to plaintiff's counsel or his own letter containing the substance of the offer. The lawyer mentions that once previously D talked settlement with P directly and that thereupon P's counsel requested the lawyer to instruct D not to initiate any further settlement discussions with his client.
Discussion: DR 7-104(A)(1) provides that "During the course of his representation a lawyer shall not: Communicate or cause another to communicate on the subject of the representation with a party he knows to be represented by a lawyer in that matter unless he has the prior consent of the lawyer representing such other party or is authorized by law to do so." In addition DR 1-102(A)(2) provides that "A lawyer shall not: Circumvent a Disciplinary Rule through actions of another."
There are doubtless many situations where parties' relations with one another will lead to discussions on their own of matters relating to the dispute. In such situations, we believe that it is not the obligation of a lawyer to attempt to halt discussions between the parties about the subject matter of the litigation when such discussions come to his attention and it is perfectly appropriate for the lawyer to tell counsel for the adversary party to give appropriate instructions to his own client if he does not wish the matter to be discussed. This inquiry, however, involves settlement negotiations in which the lawyers have been involved and the inquiry suggests that the lawyer and D have worked out a settlement position. In that situation, D's proposed discussions with P spring from a negotiating position that the lawyer and D have worked out in consultation with one another. In that event, D's proposed discussions with P represent, in some measure, the lawyer's work, and permitting D to transmit the product of such work constitutes "causation" by the lawyer in violation of DR 7-104(A)(1). Under those circumstances, it is our view that that position should be communicated only to plaintiff's attorney, and that the lawyer should instruct D not to have settlement discussions with P since plaintiff's counsel has not given his consent.
The second part of the lawyer's inquiry has been faced by many ethics committees. There is general agreement that the lawyer would violate DR 7-104(A)(1) by sending to P a copy of the settlement letter previously sent to plaintiff's counsel, unless lawyer has the consent of plaintiff's counsel. We agree that that appears to be the plain meaning of the rule and is in accord with its purpose to assure effective representation by not permitting communication of any sort between a lawyer and another lawyer's client without his consent. In view of the "cause to communicate" language of DR 7-104(A)(1) and the provisions of DR 1-102(A)(2) we see little difference between your sending the letter and D's sending a letter that contains the substance of your original letter.
On the other hand, we realize that DR 7-104(A)(1) does cause some difficulties in those situations where a lawyer fears, as may be the case here, that his settlement offer has not been transmitted to the other party. The problem is not so severe in a litigated matter, however, for the lawyer ought to be able to resolve any concerns through tactful discussion at a settlement conference in the presence of a judge.

Permission to publish granted by the Board of Delegates, June 23, 1982. As stated in the Rules of the Committee on Professional Ethics, this advice is that of a committee without official governmental status.