The Florida Bar

Ethics Opinion

Opinion 88-4

FLORIDA BAR ETHICS OPINION
OPINION 88-4
April 15, 1988
Advisory ethics opinions are not binding.
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-client 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.