(concurring) — Although I agree with the majority that a 60-day suspension is an appropriate sanction here, I write separately to express my disagreement with the majoritys holding that it is unnecessary for us to decide if Stephen Carmick’s misrepresentations to Barbara McCracken regarding Eugene Butler and Nelson Hunt’s schedule violated RPC 4.1(a) and RPC 8.4(c) because the misrepresentation was not “material.” Majority at 600.
While certainly it was a violation of RPC 4.2 for Carmick to have communicated with McCracken on behalf of David Catron when he knew or should have known that McCracken was represented by counsel, the majority fails to recognize that Carmick’s untrue statements to Mc-Cracken regarding the availability of her counsel were material in the sense that had Carmick not made the misrepresentations that are summarized in the Disciplinary Board’s finding of fact 20, McCracken may well have contacted Butler and/or Hunt. Had she done so, one or both of them most likely would have rendered advice to *608McCracken that would have mitigated the harm that was caused to her by Carmick’s improper communication.
Although I can accept the majority’s determination that we need not decide whether Carmick violated RPC 4.1(a) by failing to advise her that $11,000 had been deposited into the registry of the court, I must say that Carmick’s letter to McCracken of July 14, 1994, comes very close to being an affirmative misrepresentation if it is not one. In his letter he appears to suggest that McCracken would have difficulty collecting on her judgment and thus should compromise her claim. In light of the fact that $11,000 was already on deposit with the superior court, her ability to collect on her judgment would have to be viewed as quite good and a statement suggesting otherwise is, arguably, an affirmative misrepresentation.
The Washington State Bar Association, however, merely alleged that the misrepresentation was by omission. If a misrepresentation by omission constitutes a violation of RPC 4.1(a), it is, as the majority observes, adequately dealt with as a violation of RPC 4.2.
Madsen, J., concurs with Alexander, C.J.
After modification, futher reconsideration denied July 30, 2002.