Many skillful lawyers help their clients craft successful settlements; yet, other lawyers are perceived to get in the way of settlement. As parties to a legal matter have increasingly recognized the right to communicate directly with each other, the legal ethics rules have evolved to permit lawyers to work through their clients to communicate with an adversary to settle a matter.1
In opinion 11-461, the American Bar Association Standing Committee on Professional Responsibility opined that a lawyer may advise a client to communicate directly with the opposing party. In doing so, they may assist the client with the substance of proposed communications to the opposing party.2 While the lawyer’s assistance may not result in overreaching by the lawyer, such assistance need not be prompted by a request for help from the client.3
Concerns About Circumventing the Lawyer’s Ethical Obligations. Suffice it to say, a tension exists between a lawyer’s active participation in client’s direct communication with a represented adversary and the prohibition against the lawyer’s doing indirectly what the lawyer cannot do directly.4 Yet, the language of Rules 4.4 and 8.4(a) and their Comments permit lawyers to participate with clients in making such direct communications with client adversaries.5
Avoiding Interference with the Adversary’s Attorney-Client Relationship. A lawyer may review, redraft and approve communications a client wishes to use in negotiating with a represented adversary.6 This equips the client to better communicate or prevents the client from disadvantaging herself or himself. The client could also request that the lawyer draft the basic terms of a proposed settlement agreement, but in doing so, counsel must be careful not to interfere with the adversary’s attorney-client relationship.
Reiterating that Adversaries Should Consult with their Counsel. To prevent such overreaching, a lawyer must, at a minimum, advise his or her client to encourage the other party to consult with counsel before entering into binding obligations, making admissions or disclosing confidential information.7 If counsel has drafted a proposed agreement for the client to deliver to a represented adversary for execution, counsel should include in such agreement conspicuous language on the signature page that warns the other party to consult with counsel before signing the agreement.