September 1, 1983
A lawyer should not communicate with an adverse party who is represented by counsel. However, in a domestic relation case it is permissible for a lawyer to give a client a draft settlement proposal even when the lawyer knows the client may discuss the document with the spouse who is represented by counsel. Under no circumstances should a lawyer encourage a client to take action that might tend to interfere with the attorney-client relationship of the adverse party.
A lawyer has inquired as to the ethics of preparing a settlement proposal in a custody dispute and providing it to his or her client with the request that the client obtain the signature of the spouse on the document, even though the spouse is represented by counsel. Such a course of conduct by a lawyer would violate the Code of Professional Responsibility which provides in DR 7-104 that a lawyer "shall not communicate or cause another to communicate on the subject of the representation with a party known to be represented by a lawyer . . . unless the lawyer has the prior consent of the lawyer representing such other party or is authorized by law to do so."
Where counsel represents a party, DR 7-104 applies. In a case where a settlement offer was sent directly to the defendant, by passing the lawyer, it was held to be improper. ABA Informal Op 1348. Even where counsel does not represent the adverse party, any communication between the lawyer and the unrepresented party must be at arm length. ABA Informal Op 1269.
This is not to prohibit counsel from drafting a settlement proposal for his or her client, even when counsel knows that the client may, and probably will, discuss the proposal with the spouse who is represented by counsel. Counsel has no duty to furnish a copy of the proposal to opposing counsel unless the client approves of sending the proposal. The drafting of a settlement proposal for discussion with a client differs from obtaining signatures to a final document. The former is ethical, the latter is not.
Domestic relation's cases usually involve the custody and visitation of minor children and during the litigation both parties often continue to occupy the marital home. Lawyers assisting people at such times should encourage the parties toward resolution of their disputes. This may mean that, at times, both counsels are not involved in the communication. Under no circumstances should a lawyer encourage a client to take action that might tend to interfere with the attorney-client relationship of the adverse party.