The Florida Bar

(April 15, 1988)
It would be improper for a lawyer, upon conclusion of a matter, to contact the opposing party directly in a quest for evidence that opposing counsel was guilty of neglect in his representation of the opposing party.

RPC: 4-4.2, 4-7.4, 4-8.3(a)

The inquiring attorney represented the Appellee in the appeal of a particular case. The Appellant requested oral argument, but Appellant's attorney failed to appear. The order of the trial court was affirmed. The matter is now concluded.

The inquirer is considering filing a complaint with The Florida Bar about the conduct of Appellant's attorney. One ground for the complaint would be the attorney's apparent neglect of a legal matter entrusted to him. Further, the inquirer believes that Appellant's attorney may have billed Appellant for appearing at oral argument although he in fact did not appear.

The attorney asks whether it would be ethically permissible for him to directly contact Appellant for the purpose of inquiring whether Appellant had authorized his attorney not to appear at oral argument and whether Appellant was billed for opposing counsel's nonappearance.

It would be improper for the attorney to interject himself into the professional relationship of opposing counsel and Appellant. Although the Rules of Professional Conduct do not expressly forbid the contemplated questioning of Appellant, such intermeddling in the attorney-client relationship between opposing counsel and Appellant would be unprofessional, discourteous and inconsistent with principles underlying Rule 4-4.2 and Rule 4-7.4. Rule 4-4.2 provides that 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. Rule 4-7.4, which is inapplicable here, forbids a lawyer to solicit employment from a prospective client for a particular matter when the lawyer knows or reasonably should know the prospective client has already obtained counsel in the matter. The purpose of both rules is to insulate the attorney-c lient relationship from interference by third parties.

If the inquiring attorney feels compelled to investigate the details of opposing counsel's employment agreement with Appellant, he should direct his inquiry to the lawyer. If the lawyer's response is unsatisfactory or confirms the inquiring attorney's suspicions, the attorney should refer to Rule 4-8.3(a), which provides:

A lawyer having knowledge that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer's honesty, trustworthiness, or fitness as a lawyer in other respects shall inform the appropriate professional authority.

[Revised: 08-24-2011]