FLORIDA BAR ETHICS OPINION
April 30, 1995
Advisory ethics opinions are not binding.
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
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.