Ethics Opinion

Opinion No. 83-5

May 1983

Summary: An attorney may send a demand letter under M.G.L. c.93A, S9 directly to a party represented by counsel.

Facts: An attorney wishes to amend a complaint in order to assert a claim on behalf of a client under G.L. c.93A, S9, against a party known to be represented by counsel. The attorney inquires whether the demand letter required under G.L. c.93A, S9, may properly be sent directly to the opposing party without the prior knowledge or consent of the opposing party's counsel.

Discussion: This inquiry requires examination of DR 7-104(A)(1), which regulates communications by an attorney with a party represented by counsel. DR 7-104(A)(l) provides:
During the course of his representation of a client, a lawyer shall not:
(1) Communicate or cause another to communicate on the subject of the representation with a party he knows to be represented by a lawyer unless he has the prior consent of the lawyer representing such other party or is authorized by law to do so.
Because G.L. c.93A, S9 requires that a demand letter be sent to the "prospective respondent," the mailing of such a letter directly to the opposing party is comparable to the service of a legal notice and may be done ethically. ABA Informal Opinion No. 426 (Mar. 16, 1961) (attorney may serve legal notice but not discuss contents); Maine State Bar Assn. Opinion No. 28 (May 1975) (notice to quit); Ohio State Bar Assn. Opinion No. 23 (offer of judgment). Some authorities require that the communication also be sent to counsel for that opposing party. ABA Informal Opinion No. 985 (Aug. 26, 1967); Washington State Bar Association Opinion No. 96 (Sept. 1961). However, we find no authority for such requirement in the rule or the statute.

Permission to publish granted by the Board of Delegates on January 19, 1983. As stated in the Rules of the Committee on Professional Ethics, this advice is that of a committee without official governmental status.