Ethics Counsel on www.OKbar.org

OBA Ethics Counsel

Ethics Opinion No. 177

Adopted August 4, 1954

QUERY

A lawsuit having been filed, arising out of tort, wherein the Defendant carries liability insurance, case is referred to an attorney employed by the liability insurer, to defend on behalf of and in the name of the insured, the Defendant in the action. The Attorney of record for the Defendant filed an Answer. After the issues had been made up, the Attorneys for the Plaintiff direct a letter to the Defendant personally, without the knowledge or consent of the Attorney of record for the Defendant. Needless to say, the letter being sent direct to the Defendant pertains to the case, its trial, its probable outcome, and to the probable ultimate liability of the Defendant.

Is this ethical?

ANSWER

Such conduct on the part of a lawyer as described above is in indirect violation of Canon 9, which reads as follows:

"A lawyer should not in any way communicate upon the subject of controversy with a party represented by counsel; much less should he undertake to negotiate or compromise the matter with him, but should deal only with his counsel. It is incumbent upon the lawyer most particularly to avoid everything that may tend to mislead a party not represented by counsel, and he should not undertake to advise him as to the law."

Drinker's Legal Ethics at page 202 says:

"The 'wise and beneficent' aim of the Canon has been said to be to 'preserve the proper functioning of the legal profession as well as to shield the adverse party from improper approaches."'

California disciplined an attorney for negotiating directly with an opposing party who was represented by an attorney. See Carpenter v. State Bar of California, 210 Cal. 520, 292 P. 450.