Truth be told, I’ve been there as a client. It felt as if my legal matter wasn’t progressing as fast as I thought it should and it seemed to me that the attorneys were the ones getting in the way. I started to wonder if I couldn’t move things along by just having a one-on-one with the other side. If I happened to be your client and came to you saying that I’d like to put all the lawyers on the sidelines temporarily in order to have a face-to-face sit down with the adverse party at some neutral place so we can finally settle this thing, how would you respond? Of course, understand that after an agreement is reached, the plan would be to have the attorneys re-enter the picture in order to do whatever needs to be done to wrap the matter up. I had no desire to terminate the representation. It was just a slight change in the game plan.
Some attorneys may say, “I really like this idea. Here’s what I want you to do…” but this may not be the best idea. Remember that Rule 4.2 of our Rules of Professional Conduct almost always prohibits you from communicating directly with an adverse party that is represented by another lawyer. Of course, it’s your client and not you who’s wanting to communicate directly with the other side, so what’s the problem? Yes, absent a protective order or other injunction making it unlawful, your client is free do so, but only as long as it’s on their own accord and that’s key.
Don’t play games should you ever find yourself in this situation! Rule 8.4 Misconduct does not allow you to make a communication through the acts of another that would otherwise be prohibited by the rules. You are not to use your client as your conduit to deliver messages, advice, or information to the other side nor can you use your client as a tool to elicit information. Does this mean you can’t be involved at all? Not necessarily. ABA Formal Opinion 11-461 (August 4, 2011) provides some guidance. In short, while you can’t mastermind or script the conversation you would like to have occur, you can advise your client by perhaps identifying the general issues or topics that should be discussed or suggesting an overall strategy to be employed. As I see it, if a client is set on having a direct communication with the other side, this client is best served by having you at least share your legal advice on how to make sure the conversation/negotiation has the best chance of moving things forward.
Of course, there’s a flip side here. What if, in your professional judgement, your response is not only do you not like the idea, you think it’s a really bad idea. Some attorneys may even decide to wash their hands of the whole thing, viewing the situation as a personal affront. Regardless, you are in the role of attorney and that has ramifications. The duty of competency would seem to dictate that just as you should advise a client about how to make sure the conversation has the best chance of moving things forward, you should also consider and caution your client about any legal downsides that might result from wanting to negotiate directly with the other side. For example, might opposing counsel see the effort as a sign of weakness and frustration giving the other side an opportunity to play a waiting game? Could be.
A prudent attorney will think about the client’s true understanding of the issues, ability to keep emotions in check, and overall communication skills. Then he’ll think about how the adverse party and attorney might respond to the desire to negotiate directly. Yes, some clients may not want to hear what needs to be said, but your ethical obligations under Rule 1.4 Communication are not limited to sharing only the things your client wants to hear. Look at it this way. If you fail to advise on at least the basics of how this could go south, if and when it does, your client is going to point the finger of responsibility directly at you and say, “Why didn’t you tell me that could happen? I would never have had the conversation if I had only known.”
Yes, you will never be able to prevent your clients from ever thinking they can do better. It’s going to happen. If and when it does and then is followed up upon with a proposed change to the game plan, remember your role and act accordingly. Keeping in mind the constraints of our Rules of Professional Conduct, advise this client about the legal pros and cons thereby giving them the ability to make an informed decision regarding the course of representation. They may or may not take your advice, but at least you’ve done what you have been hired and are obligated to do. Most importantly, don’t forget to document that advice. Otherwise, you’re just inviting trouble through the backdoor.