2005-42.

• Court: Oregon

Oregon Ethics Opinions 2005. 2005-42. FORMAL OPINION NO. 2005-42Communicating with Unrepresented Persons:Prospective Defendant Facts: Lawyer has been asked to represent Client, a prospective plaintiff, against a prospective defendant. Before instituting litigation, Lawyer would like to speak to the prospective defendant about the matter or have an investigator do so. Questions: 1. May Lawyer speak to the prospective defendant? 2. May Lawyer draft an affidavit commemorating the prospective defendant's statement? 3. May Lawyer negotiate and draft a settlement agreement between Client and the prospective defendant? Conclusions: 1. Yes, qualified. 2. Yes, qualified. 3. Yes, qualified. Discussion: The appropriate starting point of analysis is Oregon RPC 4.2: In representing a client or the lawyer's own interests, a lawyer shall not communicate or cause another to communicate on the subject of the representation with a person the lawyer knows to be represented by a lawyer on that subject unless:

(a) the lawyer has the prior consent of a lawyer representing such other person;

(b) the lawyer is authorized by law or by court order to do so; or

(c) a written agreement requires a written notice or demand to be sent to such other person, in which case a copy of such notice or demand shall also be sent to such other person's lawyer.

This rule is discussed at length in OSB Formal Ethics Op No 2005-6. See also OSB Formal Ethics Op No 2005-126.

Under the facts presented, it is not improper for Lawyer to speak to the prospective defendant or to cause Lawyer's agent to do so because Lawyer does not know(fn1) that the prospective defendant has already retained counsel in connection with this matter. Oregon RPC 4.2 is not implicated even if Lawyer knows or reasonably believes(fn2) that the prospective defendant likely will have counsel if suit is filed. If Lawyer does not know that the prospective defendant is represented in the matter, Lawyer or Lawyer's investigator may speak to the prospective defendant and may also draft an affidavit commemorating the prospective defendant's statement. In that event, Oregon RPC 4.3 is also relevant: In dealing on behalf of a client or the lawyer's own interests with a person who is not represented by counsel, a lawyer shall not state or imply that the lawyer is disinterested. When the lawyer knows or...