Communicating with a represented party 

Once a person is represented, the other side's practitioner must deal with the practitioner and not with the person. The rule is short, it is one of the first a new practitioner is taught, and it is breached most often not by deliberate approach but by answering a message that should have been redirected.

What the rule prohibits

Rule 33 puts it directly: a solicitor must not deal directly with the client of another practitioner in a matter, where the solicitor knows that person is represented in that matter.¹ The prohibition reaches any dealing about the subject of the retainer — a phone call, an email, a letter, a message on social media, or an approach in a courthouse corridor.

Three features define its scope:

• Knowledge. The rule bites where the practitioner knows of the representation. A practitioner who does not know may make contact, but the rule is not a licence for wilful blindness, and enquiring whether a person is represented is itself permitted.
• In the matter. The prohibition is confined to the matter in which the person is represented. A practitioner may deal with the same person about an unrelated matter in which they are not represented.
• Not limited to litigation. It applies to transactional work as much as to a proceeding.

The purpose is protective rather than territorial. A represented person has engaged a practitioner precisely so that they are not exposed to negotiation, pressure or admissions without advice, and the rule preserves that protection.

When direct communication is permitted

The exceptions are narrow and each requires care:

• The other practitioner consents. Consent should be obtained in advance and confirmed in writing; a practitioner who assumes consent from silence has not obtained it.
• Urgency. Where the circumstances are so urgent as to require direct dealing, and the dealing would not be unfair to the represented person. Both limbs must be satisfied — urgency alone does not excuse an unfair approach.
• Enquiring about representation. A communication whose sole substance is to ask whether the person is represented, and by whom, is permitted.
• Where the law otherwise permits or requires it. Service of a document in accordance with rules that require personal service is the standard example, as is a statutory notice that must be given to the party.

Two situations commonly assumed to be exceptions are not. A practitioner may not deal directly because the other practitioner is slow to respond, and may not do so because the client instructs it. The client's wish to speak to the opponent is not a basis for the practitioner to arrange it.

The self-represented opponent

Where the other side has no practitioner, direct communication is unavoidable and the rule does not apply. Related duties do:

• A practitioner must not take unfair advantage of the self-represented person's lack of legal knowledge.
• A practitioner must not give legal advice to the opponent, and should say plainly that they act for the other party and that the person should obtain their own advice.
• Anything said should be recorded, because a disputed conversation with an unrepresented opponent is difficult to reconstruct later.

Contact initiated by the represented person

An approach from the other side's client does not lift the prohibition. The correct course is to decline to discuss the matter, tell the person to raise it with their own practitioner, and notify that practitioner that the contact occurred.

This is the situation the rule is most often broken in, because the reply feels courteous rather than tactical. It is still a dealing with a represented person about the matter.

If information is volunteered before the practitioner can stop it, the practitioner should not use it without disclosing the receipt to the other practitioner, and should consider whether continued acting is affected.

Consequences of breach

Breach is unsatisfactory professional conduct, and may be professional misconduct where it is deliberate or repeated. It is dealt with through the ordinary complaints and disciplinary process.

Consequences within the proceeding may also follow. A court may restrain the practitioner from acting, exclude evidence obtained through the improper dealing, or order costs. Where an admission or agreement was extracted, its enforceability may be attacked.

Applying this in a problem question

1. Establish whether the practitioner knew the person was represented, and in which matter.
2. Ask whether the communication concerned the subject of that representation.
3. Work through the exceptions individually, and require both limbs where the exception has two.
4. If the contact was initiated by the represented person, apply the rule to the practitioner's response rather than to the approach.
5. For a self-represented opponent, address unfair advantage and the prohibition on advising rather than the communication rule.
6. Deal with disciplinary and proceeding-level consequences separately.

Self-check

• Have I established knowledge of the representation rather than assuming it?
• Have I confined the rule to the matter in which the person is represented?
• Have I required consent to be actual rather than inferred from silence?
• Have I remembered that the client's instruction does not authorise the contact?