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Who Can Communicate during Litigation

Chains of Communication: Who Can Communicate during Litigation?

When a family law (or any type of case) is filed, if the party has an attorney, the attorney will file what is called an appearance.  This filing includes the party’s information as well as the attorney’s, and it is made a part of the Court file to put everyone on notice that the party is represented by counsel.

The other party may then hire an attorney who will also file an appearance. Or, the other party may proceed, pro se (without legal representation). When the Court receives filings, motions, or is sending out Orders, they will send this paperwork to the attorneys of record or the party himself/herself, if the party is pro se.

So, while Court communications are governed by whether a party has entered an appearance, how do attorneys and parties themselves communicate? There are different processes for different situations, and not all will be explored in this blog post.  However, the main communications defined below are party-party, attorney-attorney, or attorney-party (only if the party is unrepresented).

One communication chain that may be utilized is party-party. In family law matters, this may not be an effective means of communication, because difficulty communicating is often one of the underlying causes that led the parties to the domestic law matter.  However, parties are not restrained from communicating with each other, unless there is a specific court order such as a Protective Order or No Contact Order involved.

Parties certainly often communicate about children and activities, but they can also communicate regarding agreements and dividing property.  Consulting with an attorney before directly communicating with the other party is wise to ensure the party’s interests are protected. This could be considered bypass communication (the attorney indirectly communicating with the other party) and should be carefully utilized, but courts usually encourage parties to resolve the matter between themselves, if possible.

Parties who are represented are precluded from some types of communication, however.  For example, a party who is represented by counsel may not communicate directly to the Judge or opposing counsel.  The party’s attorney is responsible for communications with opposing counsel and the Judge, to avoid potential problems.

Attorneys can also directly communicate with each other on behalf of their clients. They can discuss potential settlement agreements, upcoming hearings, and other matters.  This avoids the parties communicating directly if that is not a feasible option and it ensures that the legal matters are properly dealt with. Parties can direct their attorney’s conversations, and there are certain matters the attorneys must leave to the clients such as accepting a settlement agreement1.  This method of attorney-attorney communication protects the legal rights of the party while still allowing the party to dictate the course of the case.

A third communication chain sometimes utilized is attorney-party. This is less common, because there are Rules governing communication between attorneys and unrepresented parties2. Attorneys communicating with unrepresented persons must be very clear that they do not represent the party and may advise the party only to seek the advice of counsel. However, if an agreement is made, attorneys may communicate with parties to effectuate the completion of same.

There are several methods of communication in any case, and understanding the limitations and positives of each can allow a party to have a better understanding of how to proceed in their case. It is advisable to seek advice from counsel, as many of the issues in domestic law are complex and multi-faceted.  We hope that this blog post has been helpful in distinguishing the different types of communication.  This blog post was written by attorney, Jessica Keyes.

  1. See Indiana Rules of Professional Conduct 1.2 (a)
  2. See Indiana Rules of Professional Conduct 4.3
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