OBA Ethics Counsel
Ethics Opinion No. 38
Adopted October 28, 1932
The Board of Governors is in receipt of a letter asking for an opinion as to the conduct of a member of the bar upon the following state of facts:
"W, an attorney, filed a divorce suit for C (husband). C's wife filed a waiver. Afterward G, an attorney, filed an answer and cross-petition for C's wife and secured an order on C requiring him to pay maintenance and attorney's fees for G. Both attorneys in conference with C agreed that C should pay G's attorney's fee and the wife's answer and cross-petition would be withdrawn. Afterward C and his wife, without knowledge of C's attorney and in his absence, settled the case on the following basis: C paid G's attorney's fee and G withheld his claim for maintenance and they appeared in court together and took the decree for C's wife. W is a practicing attorney with a telephone, which fact was known to G, though G failed to communicate with W."
The inquiry is, is G guilty of violating a rule of professional conduct?
Rule 11 of the rules of professional conduct provides:
"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."
Accordingly, the conduct of the member of the bar "G" is in violation of Rule 11. Section 29 of the State Bar Act provides that the wilful breach of any rule of professional conduct shall be punished by suspension from the practice of law for a period not to exceed one year.