Opinion 339

Statement of Facts Discussion Conclusion

23 Baylor L. Rev. 874 (1972)

IMPROPRIETIES OF CLIENT - NEGOTIATIONS WITH OPPOSITE PARTY CANDOR AND FAIRNESS
An attorney should not, without the consent of opposing counsel, sanction an attempt of his client to communicate with the adverse party upon the subject matter of the controversy and the attorney should affirmatively discourage such conduct.

Canons 9, 19.

ABA Canons 9, 16, 22.

Both Texas Canon 9 and ABA Canon 9 expressly prohibit an attorney from communicating with the adverse party upon the subject matter of the controversy when he is represented by counsel. Texas Canon 19 and ABA Canon 22 further provide that the conduct of an attorney with other attorneys should be characterized by candor and fairness. Under these Canons it is, of course, obvious that it would be unethical for an attorney to advise his client to communicate with an adverse party represented by counsel and it is the unanimous opinion of this Committee that it would be equally unethical for an attorney to permit his client to communicate with an adverse party without approval of opposing counsel. See ABA Opinion No. 75 (August, 1932) and ABA Informal Decision No. 524 (May, 1962).

ABA Canon 16 provides that "A lawyer should use his best efforts to restrain and prevent his clients from doing those things which the lawyer himself ought not to do," and under that Canon the ABA Professional Ethics Committee ruled in Informal Decision 524 that an attorney should use his best efforts to restrain and prevent his clients from communicating with the other party without consent of opposing counsel.

Since Texas has not adopted ABA Canon 16, it might be argued that under the Texas Canons an attorney has no ethical duty to take affirmative action to prevent improper communications by his client but it is our opinion that the scope of Canons 9 and 19 is sufficiently broad to impose such duty and we therefore rule that an attorney should exercise reasonable efforts to prevent improper communications by his client with the adverse party. (8-0.)

Two members of the Committee further feel that if the client persists in improper communications with the adverse party, his attorney should disqualify from further handling of the matter.