Sending Contractual Notice to a Represented Party: Prudent Practice or Ethically Prohibited?
LACBA Update, January 2014
By David L. Brandon, a partner with Morris Polich & Purdy LLP; vice chair of LACBA’s Professional Responsibility and Ethics Committee; and an adjunct professor of appellate law at Loyola Law School. He may be reached at firstname.lastname@example.org. The opinions expressed are his own.
We all know that an attorney representing a client cannot communicate with another party represented by counsel. But what if the attorney’s client is a party to a contract and instructs the attorney to send the other contracting party a notice required by the contract? Can the attorney send the notice directly to the other contracting party if that party is represented?
A typical scenario. Assume Smith and Jones have a contract that requires written notice to exercise a right under the contract. The contract specifically provides that any written notice must be sent to either party at that party’s address.
Time passes, and a dispute arises. Smith and Jones both retain counsel. Smith and Smith’s attorney have decided that it is time to give Jones the required contractual notice. Smith could send the notice to Jones himself, but Smith wants all communications to go through his lawyer. Smith’s attorney is considering several alternative courses of action.
Contact Jones’ attorney, and ask the attorney to accept service of the notice as if it had been sent to Jones.
Prepare the notice for his own signature, and send the notice to Jones’ attorney only.
Prepare the notice for his own signature, and send the notice directly to Jones.
Prepare the notice for his own signature, and send the notice to Jones and Jones’ attorney.
Which of these is the best practice?
Effect of the relevant rule of professional conduct on these alternatives. To answer this question, one should start with the applicable Rule of Professional Conduct 2-100. It first provides that “[w]hile representing a client, a member shall not communicate directly or indirectly about the subject of the representation with a party the member knows to be represented by another lawyer in the matter, unless the member has the consent of the other lawyer.”1 A later subsection contains a relevant exception: “[t]his rule shall not prohibit . . . [c]ommunications otherwise authorized by law.”2 Finally, the Discussion notes that the term “party” is not limited to a party in litigation.3
How does this rule affect Smith’s attorney’s options? In this regard, keep in mind that the purpose of the rule is “‘to preserve the attorney-client relationship from an opposing attorney's intrusion and interference.’”4 Which alternative is the most prudent course of action?
Option 1 (seeking agreement that notification to the attorney complied with the contract) is probably the preferred option, because it resolves all these issues at the outset. But there may be situations where this is not possible. Perhaps Smith has been dilatory in making his decision, and there is no time to try to contact Jones’ attorney before the deadline to send the notice expires. Perhaps Jones’ attorney is in trial or on vacation and cannot be reached. Perhaps Jones’ attorney needs to get authority from Jones, and Jones is unavailable.
Option 2 (sending the notice to Jones’ attorney alone) is permissible from an ethics viewpoint, because there is no communication between Smith’s attorney and Jones. But Smith’s attorney will need to determine whether this would constitute proper notice under the contract in light of the provision expressly stating that Jones is to receive notice directed to Jones personally at Jones’ address. While this is an issue of contractual interpretation beyond the scope of this article, there may be a number of issues to consider. It might be best to avoid Option 2 unless Smith’s attorney is absolutely certain a court will consider notice to Jones’ attorney as compliance with the contract.
Option 3 (Smith’s attorney sending the notice directly to Jones) complies with the notice provision of the contract. Is it ethically permissible? While it is a direct communication with a represented party, it may fall within the “communication otherwise permitted by law” exception. There are statutes that specifically require notice to the opposing contracting party and would appear to constitute a communication authorized by law.5 Furthermore, the California Supreme Court has noted that “parties to [a contract] in essence create a mini-universe for themselves...in which they define their respective obligations, rewards and risks.”6 It would seem to follow that Smith and Jones, by inserting a specific notice provision, have created a situation where direct communication with either of them is a communication authorized by the law that their own contract has created.
Option 4 (Smith’s attorney sending the notice to both Jones and Jones’ attorney) may be a more prudent option. It clearly constitutes notice under the contract because it has been sent to Jones. The notification to Jones’ attorney may preclude any claim that Smith’s attorney is attempting to interfere with the relationship between Jones and Jones’ attorney.
However, with regard to Options 3 and 4, which involve notice being sent to Jones, it should be noted that the communication should be confined to the language necessary to constitute notice in accordance with the contractual provision. Anything more, such as commentary on the positions of the respective parties, might be considered a communication that is not authorized by the notice provision of the contract and an attempt to interfere in the relationship between Jones and Jones’ attorney.
The prudent practitioner will need to study the precise language of the contract to determine if direct contact with the opposing represented party is necessary and authorized by its terms, or whether notice to the attorney will suffice. Even if the practitioner concludes that notice must be sent to the party, it may still be advisable to send a copy of the notice to the opposing party’s attorney, perhaps with a cover letter explaining why this course of action has been chosen.
1 Cal. R. of Prof’l Conduct R. 2-100(A).
2 Cal. R. of Prof’l Conduct R. 2-100(C)(3). See also ABA Model Rule 4.2: “In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order.”
3 Cal. R. of Prof’l Conduct R. 2-100, Discussion, ¶ 4.
4 Snider v. Superior Court, 113 Cal. App. 4th 1187, 1197 (2003).
5 See, e.g., Civ. Code §1691 (rescission); Civ. Code §1511 (causes excusing performance).
6 Applied Equipment Corp. v. Litton Saudi Arabia Ltd., 7 Cal. 4th 503, 517 (1994).
LACBA's Professional Responsibility and Ethics Committee welcomes new inquiries from LACBA members regarding ethical issues or concerns about professional responsibilities. The identity of the inquirer is kept confidential within the committee. The committee, however, does not publish formal opinions that are the subject of any pending litigation involving the inquirer. If you have an ethical question that you would like the committee to consider, you can mail your written inquiry to Los Angeles County Bar Association, Professional Responsibility and Ethics Committee, P.O. Box 55020, Los Angeles, CA 90055-2020, or e-mail your inquiry marked “Confidential” to Member Services at email@example.com.