Ethics Opinon 1983-2
In a dissolution matter, where Attorney A specifically requests opposing counsel (Attorney B) to instruct his or her client not to discuss settlement with Attorney A's client, is Attorney B obligated to comply with the request?
It is not a violation of the California Rules of Professional Conduct for Attorney B to refuse opposing counsel's request to instruct his (Attorney B's) client not to communicate with his or her spouse in a domestic relations case. However, an attorney may not knowingly use his or her client as a vehicle to communicate with a represented party opponent. Further, where the legal rights of an emotionally dependent spouse may be unduly jeopardized by unrestrained contact with the "offending spouse," then a Petition to the domestic relations law and motion department for relief pursuant to the Civil Code should be considered.
Rule 7-103 of the Rules of Professional Conduct states:
"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 . . . ." (Emphasis supplied)
What constitutes "indirect communication" within the meaning of Rule 7-103? Certainly the language of the rule prohibits an attorney from initiating action intended by the attorney as a communication with the client of opposing counsel.
Nevertheless, it would be unfair to impose sanctions against an attorney for actions of his or her client which he or she did not initiate, and may not have had the power to control.
Domestic relations matters have a tendency to involve an intricate and highly complex intertwining of lives on multiple levels. The continuity of the lives of the parties, their children, friends, and other relatives may be adversely affected by their inability to communicate with each other. Restraints against interaction between the party litigants, in the absence of threat of personal injury, should not be the object of the judicial system.
Although we are not bound by the opinions of the Los Angeles County Bar Association Ethics Committee, it is interesting to note that Los Angeles Formal Opinion No. 375 [Doc. 10568], decided June 22, 1978, provided:
"So long as defense counsel was not communicating with the Plaintiff indirectly through the Defendant, he was under no obligation to prevent Defendant from undertaking direct negotiations."
It should be noted that the above-quoted opinion of the Los Angeles County Bar Association Ethics Committee overruled Los Angeles County Bar Association Formal Opinion No. 365 [Doc. 10558] and Los Angeles County Informal Opinion 1966-16 [Doc. 7843].
Thus, so long as Attorney B does not intentionally use his or her client as a vehicle to communicate with a represented party-opponent, there is no affirmative obligation to prevent such interspousal communication in a domestic relations matter.
This opinion is advisory only, and is not binding upon the State Bar, the Board of Governors of the State Bar, 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.