March 20, 1972
Ethics Opinon 1972-5
SUBJECT: CONTACT WITH ADVERSE PARTY
Wife's attorney contacted the husband directly regarding husband's arrearages in child support and prepared a child custody stipulation with the intended purpose of obtaining the signature of the wife and husband without contacting the attorney who has represented the husband during the divorce proceedings. Is such conduct proper?
Canon 9 requires counsel for both parties to deal only with opposing counsel so long as each remains attorney of record.
CANONS AND CASES
Canon 9 of the Code of Professional Ethics provides that:
"A lawyer should not in any way communicate upon the subject of controversy with a party represented by counsel; much less should he undertake to negotiate or compromise the matter with him, but should deal only with his counsel."
In Carpenter v. The State Bar of California, 210 Cal. 520, 292 P. 450 (1930), attorney for respondent husband negotiated with petitioner wife in the absence of her attorney for a stipulated order for $300 with knowledge there was a prior judgment and order for $600. Attorney for respondent husband assured petitioner wife that she did not have to discuss the stipulation with her attorney. This conduct was found to be in violation of Canon 9 of the Code of Professional Ethics.
In a later case, Sturr v. The State Bar of California, 52 Cal. 2d 125, 338 P. 2d 897 (1959), respondent husband's attorney negotiated with petitioner wife in a settlement of a divorce action. While having both petitioner wife and respondent in respondent attorney's office, he prepared and had the parties execute an agreement. At the time of the execution, respondent husband's attorney called petitioner wife's attorney and advised him of the circumstances. This conduct was found to be in violation of Canon 9.
The cases cited involved matters that arose during litigation or during the pendency of litigation which is at variance with the question presented in this Opinion. It would appear, however, that Canon 9 requires counsel for both parties to deal only with opposing counsel so long as each remains attorney of record.
EDITOR'S NOTE: This Opinion was reviewed on July 23, 1976, and determined to still be applicable. No later cases dealing with a domestic situation could be found, but the general view of the opinion has been confirmed by three nondomestic California cases, to wit: Turner v. State Bar, 36 Cal.2d 155, 222 P.2d 857 (1950); Mitton v. State Bar of California, 71 Cal.2d 525, 78 Cal.Rptr. 649, 455 P.2d 753 (1969); and Abeles v. State Bar, 9 Cal.3d 603, 108 Cal.Rptr. 359, 510 P.2d 719 (1973). On the topic generally is "Annotation: Attorney's Dealing Directly with Client of Another as Ground for Disciplinary Proceeding" at 1 A.L.R. 3 1113 et seq. The subject matter of Canon 9 is now covered by California Rule 7-103 and A.B.A. Disciplinary Rule 7-104.
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.