September 3, 1980
DR 7-104(A)(1) does not permit a plaintiff's lawyer to communicate the substance of a mediation award to a defendant represented by counsel, unless opposing counsel consents to it or unless the lawyer is otherwise authorized by law to do so.
References: DR 7-104(A)(1).
You have advised the Committee that you represent four plaintiffs injured in an automobile accident. The case went to mediation and the panel awarded your clients a total sum of $39,000. A defendant, who is represented by counsel, owns a policy of insurance with limits of $40,000. You state that if defendant requests his or her insurance carrier to pay the award and the carrier refuses, the carrier would be liable for a higher jury or trial award. You ask if it is ethically proper for you, as the lawyer for the plaintiffs, to advise the defendant of the mediation panel award and request that he or she asks his or her insurance carrier to pay the amount awarded by the panel?
DR 7-104(A) is relevant to your inquiry and says, in part:
"(A) During the course of his or her representation of a client, a lawyer shall not:
(1) Communicate or cause another to Communicate on the Subject of the representation with a party he or she 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."
This blanket prohibition against lawyers discussing the subject matter of the controversy with an adverse party, in the absence of opposing counsel's consent, is intended to preserve the proper functioning of the improper approaches. The rule is designed to prevent opposing counsel from impeding a lawyer's performance and the scope of the rule extends to even well intended approaches.
The rule has been applied in a number of given situations. For example, even under circumstances where an lawyer has grounds to believe that opposing counsel is not relaying settlement offers, DR 7-104(A) (1) does not permit the lawyer to send copies of settlement offers directly to the adverse party, although it does permit the lawyer to send them to the court (ABA Informal Opinion 1348, August 19, 1975). Also, see ABA Informal Opinion 1149 (May 14, 1970), in which the Committee held that the opposing counsel could not speak directly to an insured party to cooperate with the insurer.
DR 7-104(A) (1) clearly applies to your situation and, accordingly, it is the opinion of the Committee that you may not ethically communicate with the defendant on the subject of the mediation award without the consent of opposing counsel unless authorized by law to do so.
The jurisdiction of the Committee is limited to expressing opinions concerning the Code of Professional Responsibility and the Code of Judicial Conduct and, therefore, the Committee is not in a position to advise you whether or not there is a statute, court rule or other law that would permit you to communicate with an adverse party lacking the consent of that party's lawyer.
Although this opinion has been prepared by the undersigned, it has been circulated to all other Committee members, for their concurrence, prior to its release to you.