April 2, 2001
A lawyer may not send a written communication to the opposing lawyer's client regarding the substance of the representation unless the opposing lawyer has consented to the communication, even if the lawyer sends a copy to opposing counsel.
References: MRPC 4.2; RI-146
Inquiry has been made as to whether a lawyer can communicate in writing to opposing counsel's client provided that the lawyer simultaneously sends a copy of the writing to opposing counsel. Opposing counsel has not consented to sending written communications to the client. MRPC 4.2 states:
"In representing a client, a lawyer shall not communicate about the subject of the representation with a party whom the lawyer knows to be represented in the matter by another lawyer, unless the lawyer has the consent of the other lawyer or is authorized by law to do so."
The first question is whether a written communication is covered by MRPC 4.2. The rule does not limit communication to oral communication and there is no sound basis to read a limitation into the rule. Thus, the rule applies to written communications that address the subject of the representation.
The second question is whether the rule is satisfied by simultaneously sending a copy of the writing to opposing counsel. The rule is explicit that in order to communicate at all with opposing counsel's client regarding the subject of the representation, opposing counsel must consent. Here, there has been no consent. A simultaneous mailing to opposing counsel does not satisfy the consent element; it would circumvent the requirement to ask for and obtain consent. And, the simultaneous mailing method would shift the burden to opposing counsel to object to the communication, clearly not contemplated by the rule. Even worse, if simultaneous mailing satisfied the consent element of MRPC 4.2, then opposing counsel may be unable to object, as the rule having been satisfied, there would be no basis for an objection.
A purpose of the rule is to "prevent situations in which a represented party may be taken advantage of by adverse counsel; the presence of the party's attorney theoretically neutralized the contact." RI-145. While arguably providing simultaneous notice to opposing counsel gives counsel an opportunity to protect the client, a lawyer's role concerns not only neutralizing contact in face-to-face situations, but also insulating the client from one-sided, uninvited communication. Moreover, with the press of business and unevenness of mail delivery, the client may receive the communication before the lawyer becomes aware that it has occurred. The client may think he or she has a duty to respond and may do so without discussing the matter with the lawyer, to the client's detriment.
MRPC 4.2 encompasses written as well as oral communication, and prohibits any communication with an opposing lawyer's client regarding the substance of the representation unless the lawyer has the opposing lawyer's consent, regardless whether the opposing lawyer is informed simultaneously of the communication and given a copy of it.