NEW YORK COUNTY LAWYERS’ ASSOCIATION
Committee on Professional Ethics
QUESTION NO. 708
May an attorney, who represents a defendant in a civil action, negotiate a settlement with plaintiff who was formerly represented by counsel, but is now proceeding pro se?
May the defendant’s attorney discuss with plaintiff matters relating to his former attorney’s charging lien?
Inquirer, an attorney for an insured defendant in a personal injury action that has proceeded through depositions but has not yet been placed on the trial calendar, was approached directly by plaintiff, who stated that he could not locate his attorney by telephone or office visit. Inquirer responded that he could not talk to plaintiff because he was still represented by counsel. Inquirer then wrote to plaintiff’s attorney, describing plaintiff’s efforts to contact him and suggesting that he contact plaintiff. The letter brought no response. Inquirer there after received a copy of a letter from plaintiff to his attorney, discharging the attorney.
Plaintiff has now telephoned inquirer and wants to discuss the case with him pro se before deciding whether to retain new counsel. Inquirer believes that any settlement may be affected by the plaintiff’s attorney’s charging lien. The attorney asks whether he may ethically speak with plaintiff and negotiate a settlement with him, and whether he may discuss the possible lien with plaintiff.
The issues presented by this inquiry are largely resolved by DR 7-104(A), which states:
DR 7-104 Communicating With One of Adverse Interest.
A. During the course of the representation of a client a lawyer shall not:
Communicate or cause another to communicate on the subject of the representation with a party the lawyer knows to be represented by a lawyer in that matter unless the lawyer has the prior consent of the lawyer representing such other party or is authorized by law to do so.
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 the lawyer’s client.
See also EC 7-18.
Initially, because he knew plaintiff had been represented by counsel in this matter, inquirer had an independent duty under DR 7-104 (A) (1) to verify that plaintiff was no longer represented. It would not have been sufficient to rely on the word of plaintiff alone that he could not find his attorney. Inquirer had a duty to attempt to communicate with the lawyer.
So long as such efforts to contact plaintiff’s former counsel produce a reasonable basis to believe that plaintiff is no longer represented, defendant’s attorney is not barred by DR 7-104(A)(l) from communicating with plaintiff about the lawsuit. Here, for example, where a letter sent by inquirer to opposing counsel went unanswered and plaintiff has furnished a copy of a letter sent by plaintiff discharging the lawyer, inquirer may treat plaintiff as a person who is unrepresented by counsel. Compare New York County 513 (1963) (plaintiff’s attorneys may interview defendant whose attorneys have openly withdrawn from representation where defendant has failed to appoint new counsel after reasonable opportunity to do so) with New York County No. 625 (1973) (improper to communicate with adverse party about possible settlement even though opposing counsel refuses to return counsel’s inquiries except to state he “no longer controlled his client and she no longer sought his advice as regularly as formerly”). While inquirer thus is no longer barred by DR 7-104 (A) (1) from communicating with plaintiff about the lawsuit, DR 7-104(A)(2) establishes that the only advice inquirer may give plaintiff is the advice to secure counsel.
Because plaintiff has a right to represent himself, EC 3-7, inquirer may negotiate a settlement directly with plaintiff. New York State 478 (1978) (lawyer may discuss settlement of pending matrimonial litigation with unrepresented adverse party appearing pro se); New York County 543 (1965) (before insurer or insured is represented by an attorney, plaintiff’s counsel may communicate directly the terms on which plaintiff would be prepared to settle); New York County 93 (1916) (the legal relationship between defendant and his attorneys having terminated, no impropriety in plaintiff’s attorneys dealing directly with defendant), It is assumed that in doing so, inquirer will conduct himself in accordance with the Code of Professional Responsibility and neither seek to take advantage of plaintiff’s non-lawyer status nor abandon his obligation to represent his own client zealously within the bounds of the law.
At the outset of their dealings, pursuant to DR 7- 104(A)(2), inquirer should advise plaintiff that there may be legal issues, such as the possible attorney’s charging lien, affecting plaintiff’s right to recovery under whatever settlement is reached and that plaintiff should consult a lawyer to advise him about such issues because inquirer is barred from doing so. Such an admonition is consistent with EC 3-7, which further provides that the legal profession should help members of the public to recognize legal problems and to understand why it may be unwise for them to act for themselves in matters having legal consequences.
Assuming that, in the face of such advice, plaintiff persists in his desire to proceed pro se, defendant’s attorney may proceed to negotiate a settlement of the lawsuit with plaintiff. Although the existence, extent and validity of any charging liens or other claims that might be brought by plaintiff’s former counsel present questions of law beyond the jurisdiction of this Committee, inquirer should not ignore the possibility of such claims when fulfilling his duty under EC 7-8 to advise his client of the possible effect of each legal alternative.
Accordingly, if inquirer thinks it advisable, he may seek court approval of any settlement.
A defendant’s attorney may communicate directly with plaintiff on the subject of the lawsuit, and may negotiate a settlement with him, even though plaintiff was formerly represented by counsel, so long as the attorney has a reasonable basis to believe that plaintiff is no longer represented by counsel. However, the attorney may not give plaintiff any advice except the advice to secure counsel.
April 25, 1995