The Florida Bar
OPINION 76-21A lawyer who suspects that opposing counsel's client is not receiving settlement offers and other vital information concerning pending litigation may not himself transmit such information to the adverse party.
April 19, 1977
April 19, 1977
Canons: 8, 9, Canons of Professional Ethics
CPR: DR 1-102, 1-103; EC 7-7, 7-8, 7-11; DR 7-104(A)(1)
Opinions: 74-52, 76-26; ABA Formal 124, 326
Vice Chairman Lehan stated the opinion of the committee:
A lawyer strongly suspects that opposing counsel is not conveying to the opposing counsel's client, which is an insurance company, information such as a settlement offer, concerning a dispute between the lawyers' clients. He inquires whether he may, without the consent of opposing counsel and in the face of a specific request from opposing counsel that he not do so, send opposing counsel's client copies of letters written by him to opposing counsel containing such information.
He recognizes the existence of DR 7-104(A)(1) as to restrictions on communicating with one of adverse interest. But he suggests that the intent of DR7-104(A)(1), in its provision as to a lawyer not being permitted to "communicate" with the other lawyer's client, may be to prohibit only discussions with that client out of the presence, and without the knowledge, of opposing counsel. He further suggests that communications to a relatively sophisticated adverse party, such as an insurance company, may not be covered by DR 7-104(A)(1).
The Committee answers the Inquiry in the negative.
DR 7-104(A)(1) provides:
During the course of his representation of a client a lawyer shall not ... [c]ommunicate ... 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.
To exclude from the proscriptions of those provisions of the Code letters to an adverse party, and include only discussions as suggested by the inquiring attorney, would not only be contrary to the specific terms of DR7-104(A)(1) but would emasculate the meaning and intent of its provisions. To "communicate" information is to transmit that information, whether or not the information is discussed with the party to whom it is communicated. The purpose of DR7-104 is to promote the best functioning of the legal system through advice or assistance being given to a party by his own counsel who represents that party's interests and not by counsel with adverse interests. See EC 7-11.
DR 7-104(A)(1), in its reference to communicating with "a party," does not exclude insurance companies or any other party who might be thought to be relatively "sophisticated." To interpret the Disciplinary Rule to exclude from its provisions such a party would also emasculate its meaning because a lawyer with adverse interests could thereby avoid the Rule by making his own subjective determination, however debatable, as to who is "sophisticated" and who is not, whether the party be a natural person or a business entity. Sophistication, like beauty, is in the eye of the beholder.
This conclusion is supported by Opinion 74-52. See also Opinion 76-26. The headnote of ABA Formal Opinion 124, decided under former Canon9, also states that, "an attorney may not negotiate a settlement with an adverse party represented by counsel without the knowledge and consent of such counsel."
Under the present inquiry the grounds for the attorney's strong suspicion that opposing counsel is not conveying information to his client are not given, and we have not been presented with, and do not decide, any question as to possible ethical violation by the counsel for the insurance company. But we note the provisions of DR1-103 and DR1-102 as to a lawyer's obligation to report ethical violations to a grievance committee and ABA Formal Opinion 326, decided with reference to EC 7-7, EC 7-8 and former Canon 8, stating that "a lawyer should inform his client of all settlement offers made by the opposing party."