Legal Ethics Opinion #1525

Communication With Adverse Party: Emergency Communication With
Adverse Party When Opposing Counsel Has Not Returned Telephone

You have presented a hypothetical situation in which Attorney is
retained to defend a client in a criminal matter brought by the
client's landlord.  Client informs Attorney that he has also been
served a notice to quit by his landlord.  Client requests that
Attorney intervene in the landlord-tenant matter in an attempt to
foster a satisfaction of the criminal matter.

You indicate that Attorney contacts counsel for landlord, OC, and
speaks with him regarding possible settlement.  OC indicates that
he will speak to his client, landlord, and get back to Attorney
within the next few days. 

A few hours later, Attorney receives a telephone call from
Client, who states that the parking permit on his car will be
expiring after midnight, as the present day is the final day
pursuant to the notice to quit.  Client informs Attorney that he
is hesitant about contacting landlord regarding an extension of
his parking privileges as the landlord is the complainant in his
criminal matter.  Client further informs Attorney that the close
of business is drawing near and requests that he act quickly.

Attorney then attempts to contact OC but OC's secretary states
that OC is not in the office and that she is unsure whether he
will be back.  Attorney explains the circumstances and asks that
OC return his call immediately. 

You further advise that OC does not return Attorney's call. 
Attorney then calls the landlord's Towing Company approximately
forty-five minutes before the close of business and requests that
Client's car not be towed as there is a current dispute as to
when the tenant is required to leave.  Towing Company tells
Attorney that only the landlord or OC can make such a request. 
Attorney waits, and approximately thirty minutes before the close
of business, Attorney telephones the landlord and leaves the
following message under the emergency section of the landlord's
voice mail:

     This is Attorney for Client.  I understand that Client
     has been served with a notice to quit and is required
     to leave by the following day.  However, we have spoken
     to OC and kindly ask that you extend Client's parking
     privileges as we are attempting a tentative settlement. 
     Please call me at 123-4567 should there be any

You have asked the committee to opine whether, under the facts of
the inquiry, Attorney's actions violate DR 7-103(A).

As you have noted, the appropriate and controlling Disciplinary
Rule related to your inquiry is DR 7-103(A)(1), which provides
that a lawyer shall not communicate or cause another to
communicate on the subject of the representation with a party in
that matter unless he has the prior consent of the lawyer
representing such other party or is authorized by law to do so.

The committee is of the opinion that, under the plain language of
DR 7-103(A)(1), it is improper for Attorney to contact the
landlord directly concerning his dispute with Client/tenant since
Attorney has neither the prior consent of OC nor authorization
granted by law.  The committee recognizes the difficult position
in which Attorney has been placed by Client.  The committee
believes, however, that since Attorney has not met either
exception within the Disciplinary Rule, he may not contact the
landlord/party directly on the subject of the representation. 
See LEOs #1323, 521.

Committee Opinion
May 11, 1993