When Your Client Wants to Talk to Opposing Counsel Directly

Truth be told, I’ve been there myself sitting on the client’s side of an attorney’s desk. At the time, it felt like my legal matter simply wasn’t moving forward as quickly as it should. From my perspective, the lawyers seemed to be the ones slowing things down. Eventually I started wondering whether things might progress faster if I just sat down with the other side and worked it out directly.

Now, if I happened to be your client and came to you saying that I’d like to put all the lawyers on the sidelines temporarily in order to have a face-to-face sit down with the adverse party at some neutral place so we can finally settle this thing, how would you respond? Know that regardless of the outcome, the plan would be to have the lawyers reenter the picture in order to do whatever needs to be done to wrap the matter up. There would be no desire to terminate the representation. This would just be a slight adjustment to the game plan.

Some lawyers may be tempted to jump at the opportunity and respond by saying, “I really like this idea. Here’s what I want you to do.” Don’t go there because for you as the lawyer, this situation raises ethical considerations, strategic risks, and risk-management concerns that should not be ignored.

The Ethical Framework

Several provisions of the Rules of Professional Conduct come into play when a client proposes communicating directly with a represented opposing party. The most obvious is the so-called “no-contact rule.”

ABA Model Rule 4.2 generally prohibits a lawyer from communicating about the subject of the representation with a person the lawyer knows to be represented by another lawyer unless that lawyer consents. The rule is designed to protect represented parties from being taken advantage of by opposing counsel and to preserve the integrity of the attorney-client relationship. But there is an important nuance that sometimes surprises lawyers. Rule 4.2 restricts lawyers — not clients. Absent a protective order or other injunction making it unlawful, your client is free to communicate with the opposing party as long as it’s on their own accord and that’s key. You are not to take an active role in shaping or steering the communication.

The Critical Limitation: You Cannot Use the Client as a Conduit

Even though clients may speak with each other, you must be careful not to circumvent the no-contact rule. ABA Model Rule 8.4 prohibits lawyers from violating the Rules of Professional Conduct through the acts of another person. In practical terms, this means a lawyer cannot do indirectly what the rules forbid doing directly.

For example, you should not:

• Script what the client should say to the opposing party,
• Ask the client to deliver a specific settlement proposal,
• Provide questions designed to elicit strategic information, or
• Send messages through the client that the lawyer could not send directly

Using a client in this way effectively turns the client into a communication conduit, which can all too quickly become a rule violation.

What You Can Do

While you can’t orchestrate or script the communication, you are not required to step completely aside. [i] Guidance on this issue can be found in ABA Formal Opinion 11-461.

The opinion explains that lawyers may advise clients about direct communications with represented persons, provided the lawyer does not script or direct the actual communication.

Permissible guidance can include discussing:

• The general subjects the client may wish to address,
• The legal context of the dispute,
• Potential risks of informal negotiations,
• The importance of avoiding admissions or commitments, and
• The strategic implications of contacting the opposing party.

In other words, you may provide legal advice and strategic perspective, but you must stop short of orchestrating the conversation.

When the Idea Makes You Nervous

Of course, there’s a flip side here. What if, in your professional judgement, your response is not only do you not like the idea, you think it’s a really bad idea. You might even be tempted to wash your hands of the whole thing, viewing the situation as a personal affront. Regardless, you are in the role of attorney and that has ramifications. The duty of competency would seem to dictate that just as you should advise a client about how to make sure the conversation has the best chance of moving things forward, you should also consider and caution your client about any legal downsides that might result from wanting to negotiate directly with the other side because sometimes it actually is a really bad idea.

The Potential Risks of Client-to-Client Negotiations include the following:

• Unintended Admissions - Clients may inadvertently make statements that weaken their legal position or undermine a claim or defense.
• Disclosure of Strategic Information - Frustrated clients might reveal more about their motivations or concerns than opposing counsel would ever obtain through formal negotiation.
• Emotional Escalation - Without lawyers acting as buffers, conversations between adversaries can quickly become emotional and counterproductive.
• Creation of Binding Agreements - Clients sometimes believe they are having an informal discussion when, legally speaking, they may be creating enforceable commitments.
• Loss of Negotiation Leverage - Opposing counsel may interpret the outreach as a sign that your client is impatient, frustrated, or desperate to settle.

Your Duty to Provide Candid Advice

Even if you strongly dislike the client’s proposal, your professional responsibilities remain.

ABA Model Rule 1.4 requires you to keep your clients reasonably informed and to explain matters sufficiently so that they can make informed decisions about the representation. That means you should candidly discuss both the potential benefits and the potential downsides of the proposed communication.

For example, you might discuss:

Possible advantages

• Direct conversations can sometimes reduce hostility
• Misunderstandings may be resolved quickly
• Parties may feel more invested in reaching a solution

Possible disadvantages

• Statements may be misunderstood or misused
• Negotiation leverage may be compromised
• Informal agreements may create unintended obligations

While your client may ultimately decide to proceed despite your reservations, you still have an obligation to make sure the decision made is an informed decision.

A Prudent Lawyer Will Assess the Client Before Offering Advice

Not every client is equally suited to handle direct negotiations. Before advising the client about how to proceed, consider factors such as:

• Emotional control – Can the client remain calm and professional?
• Communication skills – Is the client capable of negotiating constructively?
• Understanding of the issues – Does the client grasp the legal and practical implications of the dispute?
• Relationship dynamics – What is the history between the parties?

While some clients are capable of having productive discussions with an adversary, others are far more likely to make matters worse. A thoughtful assessment can help you decide how to respond and advise.

A Practical Risk-Management Step: Document the Advice

There is one final step that should never be overlooked. Document the advice you give.

If the client decides to move forward with direct communication, consider confirming your discussion in writing. A short email or memo might include:

• Confirmation that the client intends to communicate directly with the opposing party,
• A summary of the risks discussed, and
• A reminder that the client should avoid making commitments without consulting counsel.

Why does this matter? Because if the conversation later goes badly, clients sometimes say:

“Why didn’t you warn me that could happen?” Clear documentation helps demonstrate that you fulfilled your professional obligations and provided appropriate guidance.

The Bottom Line

Clients sometimes believe they can resolve disputes faster by communicating directly with the other side; and in some situations that instinct may even be correct. But when a client proposes sidelining the lawyers, even temporarily, it’s important to remember the boundaries imposed by the Rules of Professional Conduct.

You need to refrain from ever using a situation like this to circumvent the no-contact rule, while still providing the advice necessary for clients to make informed decisions about their matters. Handled thoughtfully, these situations can be managed without violating ethical rules or damaging the attorney-client relationship. Handled poorly, they can create ethical problems, strategic setbacks, and potential malpractice exposure. When a client asks to “let them handle it,” don’t take offense. Do what you were hired to do. Advise, guide, and document your way through it.

[i] Because some states differ on how far a lawyer may go, always review the relevant rules, commentary, and ethics opinions in your jurisdiction prior to advising a client who intends to speak directly with the opposing party.