The Florida Bar
(April 30, 1995)
(April 30, 1995)
Opposing counsel may communicate with an individual who is litigating pro se concerning that litigation even though an attorney is representing the individual in a related matter. Opposing counsel, however, may not communicate with the individual about the subject matter of the attorney's representation without the attorney's consent.
A member of The Florida Bar has requested an advisory ethics opinion. The operative facts as presented in the inquiring attorney's letter are as follows. The inquiring attorney filed suit against an individual regarding a credit card debt. After serving the defendant, the attorney received a response from an attorney retained by the defendant alleging collection violations. Thereafter, the inquiring attorney received a pro se answer from the defendant. When questioned by the inquiring attorney as to the representation of the defendant, the defendant's attorney stated that the representation of the defendant was limited to the collection violations and that the attorney was not representing the defendant in the lawsuit because the defendant could not afford to hire the attorney for that purpose. The inquiring attorney has now asked with whom communications must or may be made, in light of the defendant's attorney's limited representation.
There is no formal answer to the inquirer's question as this question has never been addressed. However, Rule 4-4.2 of the Rules Regulating The Florida Bar may provide some guidance. This rule provides:
In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer. Notwithstanding the foregoing, an attorney may, without such prior consent, communicate with another's client in order to meet the requirements of any statute or contract requiring notice or service of process directly on an adverse party, in which event the communication shall be strictly restricted to that required by statute or contract, and a copy shall be provided to the adverse party's attorney.
The Comment to the rule states, in relevant part:
This rule does not prohibit communication with a party, or an employee or agent of a party, concerning matters outside the representation....
In accordance with the foregoing, an attorney representing a client may not ethically contact a represented person about the subject matter of the representation unless that person's attorney consents or unless a statute or contract requires the direct contact. Pursuant to the language of the Comment, however, direct communications with represented persons about matters outside the subject of the representation are permissible. Therefore, under the facts presented, because the opposing counsel is representing the defendant in the collection violations case only and not in the litigation suit, the inquiring attorney may communicate directly with the defendant regarding the litigation. The communications must be limited to the litigation; the attorney may not discuss anything with the defendant outside of the lawsuit. The attorney should notify the opposing counsel that the attorney intends to deal directly with the defendant on the litigation case only and that, regarding the collection violations case, the attorney will limit all communications to the opposing counsel. The attorney might consider copying the opposing counsel with the attorney's correspondence to the defendant regarding the litigation case, so that there is no question as to the communications made.