OBA Ethics Counsel
Ethics Opinion No. 212
Adopted September 15, 1961
An attorney in the state has forwarded to the Association a copy of a letter written by a fellow attorney to the president and members of the Town Board of Trustees of a state town. The letter, in effect, is critical of the action of the Town Board in proceeding with an appeal in connection with a condemnation case in which the attorney successfully represented the plaintiff against the municipality in the district court. It would appear that the attorney contends that some representative of the Town Board of Trustees had indicated to said attorney or his client that the Town would abide by the judgment of the district court. The letter is one of criticism for failure so to do. The complaining attorney represented the Board of Trustees in connection with the litigation.
Is such action by an attorney such that would constitute a violation of the canons of professional ethics?
The action of the attorney in writing directly to the Town Board of Trustees constitutes a violation of Canon 9 of the Canons of Professional Ethics of the American Bar Association, 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."
The mere fact that in this instance the defendant is a public body in no way alters the situation. Prior to the commencement of litigation the attorney in question could have properly appeared before the Trustees in their official capacity in connection with any complaint he or his client might have. However, once litigation has been commenced, we are of the opinion that his contact with the adversary should at all times be through counsel for the adversary, even though it be a municipality or other governmental agency.
This Opinion does not intimate that the Town Board or any public body should be protected from criticism. The proper procedure in the instant case would have been for the plaintiff's attorney to write to counsel for the Town Board asking that he be permitted to present his complaint to the Board in the presence of their counsel.