Formal Opinion 96
(1961)
Negotiations Conducted by Attorney with Adverse Party

We have been asked for a clarification of Ethics Opinion 66, which opinion held as unethical and in violation of Canon 9, any negotiations conducted by an attorney with the opposite party in the lawsuit.

It has been pointed out that under the provisions of R.C.W. 4.84.110 the defendant is given a right to make a tender to a plaintiff on the amount the defendant believes to be due the plaintiff and that this tender can be made in the defendant’s answer. Further, that if it turns out the defendant is correct, then he will be considered the prevailing party in the case and will recover costs from the plaintiff.

Also pointed out is R.C.W. 4.84.120 wherein it is provided that a defendant can deposit at any time with the clerk of the court the amount which he admits to be due the plaintiff, together with all costs accrued to the time of the deposit. That the statute then requires that he notify the plaintiff of this deposit, and if the plaintiff refuses to accept it, and does not recover a larger amount in the action, the plaintiff must pay the defendant’s costs accrued from the time the deposit was made.

It has been mentioned that Rule 68 of the Rules of Pleading, Practice and Procedure provides, in effect. that a party defending against a claim may serve upon" the adverse party" an offer to allow judgment to be taken against him with costs accrued to that time, that further under the rule the offer must be accepted within ten days or it shall be deemed withdrawn. That if the judgment finally obtained by the plaintiff is not more favorable than the offer, the plaintiff must then pay the defendant’s costs incurred after the offer was made.

It is the opinion of the Committee that statutory procedural requirements that provide for service upon the opposite party of certain notices, etc., would obviously be an exception to the conduct held unethical in Opinion 66; however, R.C.W. 4.28.230 provides that notices shall be in writing and that notice and other papers may be served on the party or attorney in the manner prescribed in R.C.W. 4.28.240 et seq. It would seem that this statute specifically authorizes service of all papers upon the attorney of record and that such service certainly would comply with any statutory requirement of service upon the opposite party. In any event, it is the opinion of the Committee that the attorney of record should always be served with all papers that are served upon the opposite party.

Ethics Opinion 66 should therefore be modified to the extent indicated herein.