Ethics Opinon 1983-11, San Diego County Bar Association

Ethics Opinon 1983-11

I
QUESTION

Attorney "A" representing Client "A", and Attorney "B" representing Client "B", had been involved in negotiations concerning a dispute between the respective clients for about two months. Attorney "A" advised Attorney "B" that he (Attorney "A") was leaving town for three weeks and requested that no action be taken until his return. Before Attorney "A" left town, Client "A" and Client "B" mutually requested Attorney "B" to draft a settlement agreement containing terms which strongly favor Client "B". Attorney "B" decides not to contact Attorney "A" for fear that Attorney "A" would persuade Client "A" not to enter into the agreement. While Attorney "A" is out of town, the parties sign the agreement drafted by Attorney "B". When Attorney "A" returns to town, Client "A" notifies him that he has been discharged.

Where an attorney is approached by opposing attorney's client, must he notify the opposing attorney before communicating with the opposing client?

II
CONCLUSION

Rule 7-103 of the Rules of Professional Conduct prohibits communication between an attorney and a party the attorney knows is represented by counsel. In this case, before communicating directly with Client "A", Attorney "B" should contact Attorney "A" and give him an opportunity to consult with his client. Failing in that regard, Attorney "B" would be in violation of Rule 7-103.

This opinion does not address the protocol of a situation where there is a refusal by Attorney "A" to permit communication between Attorney "B" and Client "A" accompanied by a prolonged apparent breakdown in the interpersonal relationship between Attorney "A" and Client "A".

III
DISCUSSION

This question is decided by Rule 7-103 of the Rules of Professional Conduct, which provides as follows:

"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 . . ."

It is significant that the rule makes no distinction as to whether the communication is initiated by the attorney or the adverse party. One legitimate objective of Rule 7-103 is the protection of an impetuous client against his own folly or the persuasive powers of opposing counsel. Although a client may have broad rights to discharge his attorney, it would be unfair to permit that decision to be influenced by direct communications with his opponent's attorney.

The attorney is the agent of the client, and the general rule is that a client has the right and power to discharge his attorney at any time. People v. Pearson (1940) 41 Cal.App.2d 614, 107 P.2d 463; People v. Norton, (1860) 16 Cal. 436; Lee v. Superior Court, (1896) 112 Cal. 354, 44 P. 666; Woodbury v. Nevada South R. Co., (1898) 121 Cal. 165, 53 P. 450; Gage v. Atwater, (1902) 136 Cal. 170, 68 P. 581; Gill v. Southern Pacific Company, (1916) 174 Cal. 84, 161 P. 1153; Todd v. Superior Court, (1919) 181 Cal. 406, 184 P. 684, 7 A.L.R. 938; Kirk v. Culley, (1927) 202 Cal. 501, 261 P. 994; Scott v. Superior Court, (1928) 205 Cal. 525, 271 P. 906; Cazaurang Estate, (1934) 1 Cal.2d 712, 36 P.2d 1069; O'Connell v. Superior Court, (1934) 2 Cal.2d 418, 41 P.2d 334, 97 A.L.R. 918; People v. Metrim Corporation, (1960) 187 Cal.App.2d 289, 9 Cal.Rptr. 584; Fivey v. Chambers, (1962) 199 Cal.App.2d 457, 19 Cal.Rptr. 111; People v. Hook, (1967) 248 Cal.App.2d 618, 56 Cal.Rptr. 683. A client should not be tied to an attorney after he has lost confidence in him. Fracasse v. Brent, (1972) 6 Cal.3d 784, 100 Cal.Rptr. 385, 494 P.2d 9. However, a client should not discharge his attorney based on the siren song of opposing counsel. The choice should be made either on his own or after discussing the matter with impartial counsel.

There are instances when a client does not have an unequivocal option to discharge his attorney. One example of such an instance would be where the attorney has a specific, present and coexisting interest in the object of representation. Todd v. Superior Court, (1919) 181 Cal. 406, 184 P. 684, 7 A.L.R. 938; Kelly v. Smith, (1928) 204 Cal. 496, 268 P. 1057; O'Connell v. Superior Court, (1932) 2 Cal.2d 418, 41 P.2d 334, 97 A.L.R. 918; Echlin v. Superior Court, (1939) 13 Cal.2d 368, 90 P.2d 63, 124 A.L.R. 719, 97 A.L.R. 923. Accordingly, communication between Attorney "B" and Client "A" may have an effect upon the personal rights of Attorney "A" and should be prohibited.

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.