Ethics Opinon 1978-9

November 19, 1978

SUBJECT: COMMUNICATING WITH ADVERSE PARTY REPRESENTED BY COUNSEL

I
QUESTION PRESENTED

If a domestic respondent has counsel, does certain communication with respondent's military commanding officer violate Rules 7-103 and 7-104?

II
FACTS

Lawyer A representing Wife files a Petition for Dissolution. Lawyer B, representing Husband/Respondent, files Response for Husband who is on active duty in the armed forces. Lengthy negotiations go on between Lawyer A and Lawyer B. Unbeknownst to Lawyer B and his client, Lawyer A writes the Respondent's commanding officer. At the time of the writing of the letter, no Show Cause Hearing had been set by Lawyer A. After about three to four months of unfruitful negotiations, Lawyer A sets a Show Cause Hearing. Lawyer B responds with appropriate pleadings and the hearing is held. A reasonable Order is made by the Court pertaining to, among other things, child and spousal support. Respondent subsequently falls behind in support payments. Lawyer A writes Respondent's commanding officer with a copy to the chief of services in Washington, stating:

"On July 6, 1978, I wrote you yet another letter complaining that a member of your command, ________, was in violation of a court order requiring him to provide support to his dependents. Considering the number of complaints Mrs. _________ and I have made directly to you, it amazes me that he continues to flaunt the law.

"I happen to know that it is the policy of the Marine Corps not to provide a haven for members who refuse to comply with proper court orders. You have an affirmative duty to implement this policy at your command level. Not only is ________ in the wrong, but I'm beginning to question the reasons for your disinterest in this matter. I would request that you relate to me just what efforts you have made concerning Mrs. ________'s complaint.

Sincerely,

Lawyer A

cc: Commandant of the Marine Corps"

When Lawyer B discovers the communication with the commanding officer, he contacts Lawyer A and informs him that under Rule 7-103, Lawyer A is incorrect in writing the letters, and that such correspondence is tantamount to communication with the opposing side indirectly with knowledge that the opposing party is represented by counsel. Lawyer B further informs Lawyer A that Lawyer A and his client, the Petitioner, have appropriate remedies for relief through the Courts and by requests from Lawyer A to Lawyer B.

III
RULES INVOLVED

Rule 7-103. Communicating with an adverse party represented by counsel.

A member of the State Bar shall not communicate directly or indirectly with a party whom he knows to be represented by counsel upon a subject of controversy, without the express consent of such counsel. This rule shall not apply to communications with a public officer, board, committee or body.

Rule 7-104. Threatening criminal prosecution.

A member of the State Bar shall not threaten to present criminal, administrative or disciplinarian charges to obtain an advantage in a civil action nor shall he present or participate in presenting criminal, administrative or disciplinarian charges solely to obtain an advantage in a civil matter.

IV
DISCUSSION

At the writing of this opinion, there are no cases construing the exception for communications with a "public officer, board, committee or body." However, it seems apparent that the exception applies to communications with these agencies in their governmental capacity--not in their capacity as an employer. On the facts presented, petitioner's attorney is contacting respondent's employer. The fact that the employer happens to be the military should not differentiate the situation from, for example, contacting an opposing party's corporate employer.

Even the most cursory reading of the letter of petitioner's attorney to respondent's commanding officer reveals an attempt to circumvent the lawyer/client relationship, and threaten respondent. This constitutes not only an indirect communication within Rule 7-103, but also a threat of administrative or disciplinary charges within Rule 7-104. The Rule prescribes the threat of presenting criminal, administrative or disciplinary charges for gain in a civil matter. Read especially paragraph 2 of the letter from petitioner's attorney to the commanding officer:

"I happen to know that it is the policy of the Marine Corps not to provide a haven for members who refuse to comply with proper court orders. You have an affirmative duty to implement this policy at your command level. Not only is CWO in the wrong, but I am beginning to question the reasons for your disinterest in this matter. I would request that you relate to me just what efforts you have made concerning Mrs. _______'s complaint.

V
CONCLUSION

Under the facts presented above, the letter to respondent's commanding officer/employer violates Rule 7-103 as well as Rule 7-104.

This opinion is advisory only. It is not binding upon the State Bar, the Board of Governors, its agents or employees.

Disclaimer: This opinion was issued by the Legal Ethics Committee of the San Diego County Bar Association. It is advisory only and is not binding upon any member of the SDCBA, any other member of the State Bar of California, the State Bar of California or its Board of Governors, or any persons or tribunals charged with regulatory responsibilities. The SDCBA, its officers, directors, agents, and the Legal Ethics Committee members assume no responsibility or liability in rendering this opinion.