Picture having a winning case and a reasonable client willing to compromise. It should be an easy case to settle, but the other side has dug in their heels. They have mounted a vigorous defence and won’t entertain any compromise.

Then one day the phone rings: it’s the lawyer on the other side, and she says: “look, can we talk off the record?”

These disarming words are an invitation to speak on the level, unbound by positions that have hardened during the litigation. This is how settlements start, which, of course, is a good thing.

However, off the record conversations come with overlooked risks. A too-casual approach can cause misunderstandings that undermine the trust between opposing counsel and drive the parties further apart. Ethical problems are even more problematic, and even more often overlooked.

An example helps to illustrate the issue, so let’s return to the call from opposing counsel.

She begins by putting some distance between herself and her client: “I am not trying to be unreasonable – I think this case should settle too. I just have a difficult client.”

She then shares a piece of information that might help you figure out how to bridge the settlement gap: “I know my client has a lousy case, but he won’t let it go. He feels wronged and what he really wants from your client is ---” an apology, a contract renewal, an item with sentimental value, or whatever the case might be.

Finally – and between familiar and cooperative counsel this is often unspoken – she lays down the rules for using the new tidbit of information: “I don’t have instructions to make an offer. In fact, my client doesn’t even want me to discuss settlement with you. So you didn’t hear this from me.”

The implication is that the lawyers are not to share this information with their own clients. In other words, this call is not just meant to be off the evidentiary record, it is meant to be off the client record.

This raises the first problem, which is one of definition. The terms “off the record” and its close cousin “without prejudice” are ambiguous. Their usual and most obvious meaning is that the communication is meant to be sheltered by settlement privilege. Sometimes this is the only meaning intended.

The lawyer who has an off the record conversation is a lawyer who will be withholding information from his client.

Sometimes, like in this example, more is meant: the details of the conversation are to be kept a secret from the clients. The problem is that this meaning is not always conveyed. If the caller thought that she was in the cone of silence, she would be understandably upset to get a letter from her counterpart, which she will be embarrassed to copy to her client, spelling out the private settlement terms and thanking her for suggesting them – even if the letter was duly marked “without prejudice”.

This is a practical problem, easily solved by taking a moment to agree on what “off the record” means before diving into the conversation.

The ethical issues, by contrast, are not so easily dealt with.

The lawyer who has an off the record conversation is a lawyer who will be withholding information from his client. To put it another way, this is a lawyer who will be less than candid. This might be a breach of the lawyer’s duty of candour and honesty to the client.

The entre-nous nature of the off the record discussion also tempts counsel to open up and say too much, which can lead to a breach of the duty of confidentiality.

This problem is not an academic one. The whole point of going off the record is to create a zone of privacy away from the clients’ eyes. Inevitably, this is a practice that will skirt near to the boundaries of ethics.

One solution would be to avoid the practice entirely. It could be argued that it amounts to uncreative or lazy advocacy that could be better approached in a different way. It could also be argued that it is a corruption of the barrister’s role, which is privately to encourage the client to settle but publicly to present a unified and undoubting façade to advance all aspects of a client’s cause.

The better view is that a cautious off the record conversation can be good and ethical advocacy. Private chats give cooperative counsel the opportunity to brainstorm settlement options or narrow issues. It also gives them a forum to push beyond the rigid and perhaps unreasonable positions taken by their clients on the record.

This view is supported by the existence of the lawyer’s duty of independence. Effective counsel need – in fact, are obligated – to have professional distance from their clients. They are not mere mouthpieces and have considerable latitude to conduct their clients’ cases as they see fit. The other rules of professional conduct must accommodate the duty of independence: the candour rule and the confidentiality rule cannot be so broad as to mean that the lawyer must report back to the client every word heard or pre-clear with the client every word spoken.

It is hard to draw all of the contours of the hazy boundary between good advocacy and unethical conduct, but there are some parameters for good practice:

• Get the client’s consent if possible. The commentary to Rule 3.2-2 of the Rules of Professional Conduct suggests that a lawyer can withhold information from a client as long as the client consents.

• Otherwise, do not agree before the conversation that it be off the client record. Categorically agreeing puts you in an untenable position if you receive a piece of relevant information during the conversation, like the existence of a previously unknown material fact. You would then be faced with a dilemma: either withhold it from the client and breach the duty of candour, or disclose it to the client and breach the undertaking to the other lawyer.

• Do not go off the record to put your interest ahead of your client’s, like negotiating away your client’s position to protect your account.

• Be wary of going off the record without first building a trusting professional relationship with opposing counsel.

There is no definitive authority granting lawyers the licence to have off the record conversations, and there are no guidelines for having them if they are allowed. As with so many other aspects of practicing law, we will have to muddle along guided by the rules of ethics, our own personal morals, and the spirit of good advocacy.

About the Author

Benjamin D. Arkin is an associate lawyer at Whaley Estate Litigation. He practises exclusively in the areas of wills, estates, trust and capacity litigation.