Legal Ethics Opinion 1389

You have indicated that Lawyer X represented client in a custody,
support, and visitation matter and Lawyer Y represented the
opposing party.  A final Order was entered in the matter,
subsequent to which, some months later, a problem arose regarding
visitation.  There had been no communication about [continued]
representation following the final Order.  Lawyer X directly
communicated with Lawyer Y's client regarding the visitation
problem, without having sought Lawyer Y's prior consent.

You have asked that the committee opine as to whether Lawyer X's
conduct would be violative of DR 7-l03(A)(l).  In addition, you
have inquired when and/or under what circumstances a lawyer can
communicate with a party about the subject matter of prior
litigation, following the entry of a final Order in the
litigation, when the lawyer knows the party to have been
represented in that prior litigation, without the prior consent
of the lawyer who had represented the party in that prior
litigation.  Furthermore, you inquire if the committee's view of
such communication depends upon the nature of the prior
litigation.  Finally, you ask the committee to opine if such
communication would be violative of the Code of Professional
Responsibility if the past representation had been in a
non-litigation context.


The provisions of DR 7-l03(A) mandate in pertinent part that,
during the course of his representation of a client, a lawyer
shall not 

     (l)  ...communicate on the subject of the representation
          with a party he knows to be represented by a lawyer in
          that matter unless he has the prior consent of the
          lawyer representing such other party or is authorized
          by law to do so; or
     (2)  give advice to a person who is not represented by a
          lawyer, other than the advice to secure counsel, if the
          interests of such person are or have a reasonable
          possibility of being in conflict with the interests of
          his client. 

The committee has earlier opined that it is improper for an
attorney to send a letter to the opposing party concerning
judgment matters during the appeal period from the general
district court when the opposing party had been represented by
counsel at trial, even though no appeal had yet been filed nor
had opposing party's attorney indicated that any appeal would be
filed.  LEO #963.  

The committee has also opined that where a government attorney
may communicate, under the terms of DR 7-l03, with one who has or
later will assert a claim against the attorney's agency, before
proceeding to discuss the matter when the attorney does not know
whether the person is represented by counsel, the attorney must
disclose his own status as an attorney and must inquire whether
the person wishes to have legal counsel present.  LEO #482.

It appears to the committee that the problem in question, i.e.
visitation issues, is a continuing matter directly related to the
original issues of custody, support and visitation in which
Lawyer Y represented the party opposing Lawyer X's client, since
visitation is an issue inherently subject to modification by the
court.  Further, it appears to the committee that Lawyer X's
representation of his client is a continuing relationship.  The
committee believes that, despite the final Order, it would be
imprudent for one spouse's [continuing] attorney to presume that
the opposing spouse was no longer represented since courts
generally retain an interest in matters of child custody and
support in order to protect the interests of the children
involved.  It is the committee's understanding that, despite the
entry of a final Order, such matters may always be re-opened upon
a claim of changed circumstances.  Given these factors, it is the
opinion of the committee that it is improper for Lawyer X to
communicate with the opposing party absent either Lawyer Y's
consent or leave of court, despite the issuance of a final Order
in the original litigation, since the committee opines that the
entry of a final Order in the child custody, support and
visitation matter did not terminate Lawyer Y's relationship with
his client.  See Carpenter v. State Bar of California, 292 P 450
(l930).  The committee is of the opinion that the presumption
should be that the attorney continues to represent the client. 

You have also inquired as to what circumstances would permit
communication, on the subject of prior litigation, by a lawyer 
with an opposing party previously represented in that earlier
litigation, and whether the nature of the litigation has any
bearing on the issue.  The committee has previously opined that
where


both parties to a lease agreement were represented by counsel
during the drafting of the agreement, the pertinent provision of
which required notices of default to be sent directly to the
parties, such provision indicates the attorneys' implied consent
to an attorney's direct communications with the adverse party. 
See LEO #l375; see also LEO #l28l.  But see Va. Code Ann.
8.0l-3l4 ("...in any proceeding in which a final decree or order
has been entered, service on an attorney shall not be sufficient
to constitute personal jurisdiction over a party in any
proceeding citing that party for contempt...unless personal
service is also made on the party.")  In addition, the committee
believes it would not be improper for an attorney to make direct
contact with a previously represented party, following a final
Order in that prior litigation, (l) where the attorney knows that
the representation has ended through discharge by the client or
withdrawal by the attorney, or (2) where, as permitted by DR
7-l03(A)(l), the attorney is authorized by law to do so.  It is
the committee's opinion that, absent such knowledge or leave of
court, it would be improper for an attorney to communicate on the
subject of the prior litigation with the  previously-represented
party, irrespective of the substance of the litigation.  
The committee opines that, if the attorney is without knowledge
as to any current representation of a previously represented
party, it would not be improper for the attorney to write to the
party for the sole purpose of securing information as to such
current representation.  Should the attorney determine that the
party is currently unrepresented, the committee directs your
attention to DR 7-l03(A)(2) which mandates that a lawyer not give
advice to an unrepresented person, other than the advice to
secure counsel, if the interests of such person are even possibly
in conflict with the interests of the lawyer's client.  See LEOs
#ll49, ll56, l235, l344.

You have also asked if such communication would be violative of
the Code of Professional Responsibility if the past
representation had been in a non-litigation context.  It is the
opinion of the committee that the nature of the representation is
inconsequential under the mandate of DR 7-l03 in that the intent
of the proscription is to prevent both the "overreaching [of] a
momentarily uncounselled client, ...[and] disrupting the trust
and confidence between the [client] and the originally chosen
lawyer...."  Wolfram, Modern Legal Ethics at 6ll, citing Carter
v. Kamaras, 430 A.2d l059 (R.I. l98l).  Thus, the committee finds
that the communication you describe would be equally improper if
the past representation of the adverse party had been in a
non-litigation context.  

Finally, the committee opines that it is immaterial whether such
direct contact is an intentional or negligent violation of the
disciplinary rule.  In re McCaffrey, 549 P.2d 666, 668 (Or.
l976).