Why That Lawyer on the Other Side Can’t Talk to You (And Why Your Lawyer Can’t Talk to the Other Side Directly)

Whether lawyers have ethics is, as everyone knows, a source of jokes. The reason is that the ethics of the practice of law are built around different policies and objectives than what “doing the right thing” might suggest. A good example is a rule designed to insulate clients from having their lawyer cut out of the loop in their cases.

There is an ethical rule in every state prohibiting lawyers from communicating about a legal matter with people they know have lawyers on that matter. That means that if you tell a lawyer that you need to consult a lawyer about the matter you are being asked about, the lawyer will often break off the conversation immediately and ask for your lawyer’s name or otherwise confirm that you don’t yet have a lawyer. A careful lawyer will not only break off matters, but probably won’t start up again until he or she is absolutely certain that you don’t have a lawyer.

Cynics might say that this rule protects lawyers’ fees. The real reason is to ensure that people who have lawyers get the benefit of having lawyers and that they aren’t taken advantage of by their opponents’ lawyers. Imagine the dynamics, for example, of a defense lawyer being called away from a criminal interrogation and the prosecutor continuing to question the suspect while the defense lawyer is out.

Oregon is particularly touchy about this rule; it applies to lawyers’ own legal matters in addition to their clients’, and the lawyer’s state of mind, other than confirming knowledge that the other person has a lawyer, has no bearing on whether the rule is violated. I have had to contact lawyers for permission to speak with relatives about legal matters that they wanted me to have a role in.

There are three exceptions to the rule, one of which is not recognized in all states. First, it is possible to get permission from the other lawyer to speak to his or her client. The client’s approval is not enough; otherwise, the rule could be avoided to easily. This means that a client can discuss matters with their lawyer and the client and lawyer can decide whether to approve direct contact.

Second, if a lawyer is required by law or a court order to communicate directly, that requirement can be complied with. The most common application of this exception is service of papers at the beginning of a lawsuit. Although lawyers can agree to accept service for their clients, they don’t always do this, and the law usually requires the client receive the papers if there is no agreement. Most lawyers also will send copies to the other lawyer. If it’s not obvious what law authorizes the communication, I usually tell the other lawyer what law I’m relying on.

Third, in Oregon, when a written contract specifies that notices from one party to the other are to be delivered to a specific person, a lawyer may send the notice as directed, but a copy has to be sent to the other lawyer as well.

I often have difficulty convincing people how serious the rule against contacting people with lawyers is. It runs contrary to the idea of making things easy and coming to quick resolutions, but that’s because the idea is to make sure that the resolution is fair. I have offended people by telling them that I have to break off, and only later been able to speak to their lawyer to explain why.

If you are contacted by a lawyer on a matter that you already have a lawyer for, you can protect yourself by telling the lawyer to call your lawyer. If you want to talk to your lawyer about it, don’t agree to anything with the other lawyer, and don’t give out information that you don’t want the other lawyer to have. If you do want to talk to the other lawyer, report the conversation to your lawyer afterward so that he or she isn’t surprised. And sometimes you may decide that you don’t need the rule’s protection. If you know at the beginning of the case that you will want to speak to someone else’s lawyer, talk to your lawyer first to arrange having your lawyer send a letter approving the contact (and possibly setting limits).

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16 Responses to Why That Lawyer on the Other Side Can’t Talk to You (And Why Your Lawyer Can’t Talk to the Other Side Directly)

  1. Jamaal says:

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  2. Awesome spot, I acknowledge ill ought to be
    back quickly

  3. thnidu says:

    Hmm. I did some research recently in a case as an expert… “witness” is probably the wrong word: I wrote up and submitted a report to the firm representing plaintiff. I’ve received a notice that I may be called in by the defendant’s counsel to give a deposition. I have never been involved as an expert before, so I’m in unfamiliar territory, but I’m pretty sure that what you’ve said here wouldn’t apply to me in this situation. Am I right in that?

  4. I’m not in licensed in Pennsylvania, but in Oregon and Washington, an expert is not represented by the lawyer who consults him or her. If you had your own lawyer and notified the other side’s lawyer, it would be a different story.

    • thnidu says:

      So then, you’re saying that (at least under the rules in force in OR and WA) there’s no problem here, and it’s perfectly OK for the lawyers for the side opposed to the one that hired me to be talking to me—right?

  5. thnidu says:

    (Groan.) This is getting too complicated for me. I think I will direct any questions to the firm that hired me; they’ll know the applicable specifics. Thanks for the alert, though.

  6. jenna says:

    I went through a modification on a parenting plan in Washington state I was supposed to communicate with the father on visitation the father had an attorney all along it was forwarding everything to the Attorney without the Atourney letting me know or the father letting me know and the Attorney was the one setting of visit instead of me and the father working together on the visit I have no Attorney I was wondering is this legal for them to do I asked for the attorneys information after I realized what was happening and have had no reply

    • I recommend that questions like this be sent privately to avoid giving information that can be seen by the other side in anyone’s dispute. Public statements can be used in court, and people posting public inquiries sometimes give out more information than they should.

      In addition, I should alert you that my giving general information in response is not intended to create an attorney-client relationship.

      It is generally acceptable for a lawyer to advise and direct their client in negotiations with an someone who does not have a lawyer.Once the lawyer learns the other party to the negotiations has a lawyer, however, it becomes tricky. At that point, it is generally advisable for the two lawyers to handle most of the negotiations to avoid the possibility of using their clients to contact the other side’s client.

  7. Your exposition of the ethical requirement for the “other” lawyer to refuse to talk to me if I am represented by a lawyer makes sense. But can the” other ” lawyer contact my lawyer without my consent or permission?

    • Daniel Reitman says:

      It depends on the context. A complete prohibition on contacting the other lawyer my be taken by you lawyer as an invitation to resign from the case. A limited prohibition may be honored, depending on the circumstances.

  8. May says:

    I was a victim of impersonation fraud
    Where a former friend stole my identification and registered a vehicle under my name. I didn’t find out until she got into a accident but she didn’t stay at the scene. Due to the fact it states I’m the owner I was the one charged with hit and run. By the grace of God the charges were withdrawn, however the other party is still trying to sue me for damages that I had no parts in, and against their own insurance company for 750,0000 for injuries in which she never reported

  9. May says:

    I was a victim of impersonation fraud
    Where a former friend stole my identification and registered a vehicle under my name. I didn’t find out until she got into a accident but she didn’t stay at the scene. Due to the fact it states I’m the owner I was the one charged with hit and run. By the grace of God the charges were withdrawn, however the other party is still trying to sue me for damages that I had no parts in, and against their own insurance company for 750,0000 for injuries in which she never reported..what’s the likely hood the ruling would be in the plaintiffs favor

    • As noted on the main page, please do not described your own case in public comments, as they can be read by anyone. I would not be the best person to take this case. II doubt that your car insurance would qualify, but homeowner’s or renter’s insurance might cover this, and would provide a lawyer to defend the case. Call them as soon as possible.

  10. PR says:

    This is a good topic. I know this rule applies to litigation matters, but does the rule apply to matters that are purely transactional and, if so, at what point in time does the rule apply?

    Here’s an example which I think illustrates both questions: A large company offers a product or service to a small company, and provides the small company with a contract. The small company gives the contract to its attorney (in-house or outside counsel) to redline and return to the large company. Since the vast majority of large companies have at least 1 in-house attorney, does the ethics rule require the small company’s attorney to return the redlined contract to the large company’s attorney? If not, at what point in time does the ethics rule require the small company’s attorney to only contact the large company’s attorney?

    I think this is an interesting topic because I can imagine the circumstance where a small company’s attorney ends up negotiating a contract with an employee of a large company–say, a salesperson.

    • In that case, the lawyer for A would probably try to reach the laeyr for Company B first, and would probably be given authority to speak with the appropriate representative. If the lawyer for A can’t locate the lawyer for B, then the conclusion can be drawn that it is not yet known that B has a lawyer for that transaction.

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