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ETHICS OPINION 405-1952 A lawyer writes:
NUMBER 405 1952
Question. A lawyer writes:
I would like to have your opinion on the question of the correctness of the conduct of an attorney on the basis of the following state of facts:
A client owes John Doe, an attorney, a fee. John Doe retains Richard Roe, an attorney who is not associated with him in the practice of law. but maintains separate offices at an address different from that where the office of John Doe is situated, to institute an action against the client for the recovery of this fee. The client retains an attorney. That attorney appears, serves an answer and demand for a bill of particulars. During the pendency of the action a mutual friend of the plaintiff and defendant, who is aware of the litigation, goes to the office of the plaintiff and persuades the plaintiff, for a consideration, to settle his case against the defendant. This mutual friend then pays the settlement money to the plaintiff, stating that it comes from the defendant. The plaintiff then draws a release to the defendant and advises his (plaintiff’s) attorney of the settlement of the action and, with the consent of his (plaintiff’s) attorney, forwards a stipulation of settlement and discontinuance to the attorney for the defendant. Plaintiff docs not negotiate this settlement with the defendant and does not see the defendant.
I value your opinion as to whether, based upon the above state of facts, the plaintiff in that action is guilty of any conduct in breach of the Canons of Ethics of the Association.
Supplementing the foregoing, the inquirer gave the following additional facts: The mutual friend who intervened was a businessman who was acquainted with both the plaintiff and the defendant. The consideration paid for the settlement came from the defendant. The defendant’s attorney had no knowledge of the settlement until after it had been effected, and it was he who raised the question as to the propriety of the plaintiff in effectuating the settlement without taking the matter up with him as counsel to the defendant. The precise question in the attorney’s mind is whether the fact that the plaintiff is an attorney makes it improper for him to make a settlement directly with the defendant.
Answer. Canon 9 provides, in part, as follows: “A lawyer should not in any way communicate upon the subject of controversy with a party represented by counsel; much less should he undertake to negotiate or compromise the matter with him, but should deal only with his counsel.”
It is not infrequent that litigation may be settled by the parties themselves or through an intermediary. In such instances where the attorneys for all parties involved have been advised, and there being no bad faith involved, they should cooperate in effectuating the settlement and end the litigation. In the instant case while plaintiff’s attorney was notified and consented to the settlement, defendant’s attorney was not until after the settlement was made.
The fact that the plaintiff did not negotiate the settlement with the defendant personally or see the defendant is immaterial since the defendant was represented by an attorney; nor is it material that in this case the plaintiff was acting in his capacity as a litigant rather than as an attorney. A litigant who is a. member of the Bar should bear in mind that the adverse party is entitled to the advice of his attorney in negotiating a settlement.
The conduct described in this question is obviously a violation of Canon 9, An attorney, even though a litigant, should not negotiate or compromise a matter with another party who is represented by counsel, but should deal only with opposing counsel.
However, the facts stated in this question indicate that the plaintiff’s conduct though technically a violation of <text not clear> tiff did not solicit the settlement. The settlement was suggested by the mutual friend, and the fact that the moneys paid came from the defendant indicates that the mutual friend was authorized by defendant to so act and that he was not a mere interloper. There is no suggestion of any overreaching or bad faith on the part of the plaintiff. Nonetheless, and even though the plaintiff might have been urged by the mutual friend to settle the action on the spot and not to prolong the litigation for even a day longer and may have been assured that the settlement was entirely agreeable to defendant and his counsel, defendants attorney was entitled to the courtesy of notice of the settlement, by telephone or otherwise before it was consummated.