When Opposing Counsel Doesn’t Respond

A recent post in NW Sidebar posed this interesting question.

While it is rare for opposing counsel to go MIA, it does happen. What steps should you take? Can you contact the adverse party directly?

Cut and dried rule

Oregon RPC 4.2 and Washington RPC 4.2 make no bones on this point. Direct contact with an adverse party is not permitted if you know the party is represented.  Exceptions are made in the case of consent, court order, if “authorized by law,” or when a notice must be sent directly to a party pursuant to a written agreement.

What to do

Post author Sandra Schilling makes some excellent recommendations:

  • Remember that non-communication from opposing counsel may be a deliberate strategy or delaying tactic. While lawyers have ethical duties of communication and due diligence toward clients, there is no specific rule requiring lawyers to respond to one another.
  • Make repeated efforts at contact. Warn opposing counsel of the consequence of continued nonresponse (you will contact the adverse party directly). Document your efforts.
  • Wait a reasonable amount of time.
  • Seek a court order if possible.
  • Otherwise, consider if the circumstances have abrogated your initial knowledge of representation. As Schilling points out, to “know” is to have “actual knowledge” under the rules. Your “actual knowledge” may be inferred from the changed circumstances (repeated attempts to contact, warnings to opposing counsel, and counsel’s nonresponse).
  • If you make direct contact with the adverse party, make sure you tell them to refer the communication to their attorney if they are still represented, and ask for documentation of termination if they say they aren’t.

I would add: at any point along the way feel free to use the Oregon Ethics Hotline: 
1-503-431-6475 or 1-800-452-8260.

All Rights Reserved 2018 Beverly Michaelis

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