March 26, 1983
Even if a prosecutor has grounds to believe that defense counsel is not relaying plea offers, the prosecutor may not send copies of plea offers directly to the defendant.
References: MCPR DR 7-104(A)(1); ABA i1348.
A U.S. Attorney is currently engaged in plea negotiations with an out-of-country counsel representing foreign defendants, and believes that plea offers are not being communicated to the defendants. The inquirer asks whether the plea offer may be sent contemporaneously to the defendants and their counsel.
MCPR DR 7-104(1) prohibits communication with an adverse party represented by counsel unless: (A) prior consent is acquired by adverse counsel to communicate directly with a client; or, (B) the communication is authorized by law. The facts do not present any circumstances which afford an exception to the stated rule.
ABA i1348 generally condemned the transmission of settlement letters directly to an adverse party even though the transmitter-lawyer believed adverse counsel was not communicating with the client.
"Even if a lawyer has grounds to believe that opposing counsel is not relaying settlement offers, DR 7-104(A)(1) nevertheless 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."
The reason for the rule is aptly stated in the following quotation:
"In an extension justification of the rule, one commentator has reasoned that the imbalance in knowledge and skill between a lawyer and a lay adverse party my cause even well intended acts of the lawyer to have a coercive impact on the party and to induce the party to disclose privileged information. On the other hand, the information that the lawyer obtains from communications with an unrepresented adverse party may lead the lawyer to take into account the situation or circumstances of that party, which would dilute the lawyers zeal in representing a client. Arguably, moreover, the rule facilitates the settlement of disputes by placing them in the hands of those who are professional trained to make dispassionate judgments." Kurlantzik, Lewis, "The Prohibition on Communication with an Adverse Party," 51 Conn. B.J. 136 (1977).