You probably know you’re prohibited by the ethics rules from directly contacting an opposing party who is represented by counsel.
But does that prohibition also apply when lawyers represent themselves?
Yes, says the American Bar Association in a recent ethics opinion.
“Formal Opinion 502 states that under ABA Model Rule 4.2, lawyers who represent themselves may not communicate directly, under most circumstances, with a represented person about the matter,” according to this press release from the American Bar Association Standing Committee on Ethics and Professional Responsibility. “The formal opinion makes it clear that the self-representing or pro se lawyer must communicate with the represented person through the other person’s lawyer unless the communication is authorized by law or court order or consented to by the person’s lawyer.”
Rule 4.2 is sometimes called the “no-contact” or “anticontact.” Questions about the rule’s application have arisen in the context of lawyer pro-se representations.
Formal Opinion 502, issued in September 2022, seeks to shed light on the situation.
Read ABA Formal Opinion 502 here. Read an ABA press release here.
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ABA Formal Opinion 502
Here are some takeaways from the ethics opinion:
- The committee noted that Rule 4.2 is hazy when it comes to pro se lawyers. The confusion comes from Comment 4 to Model Rule 4.2, which says parties in a lawsuit may communicate with each other.
- Even though the lawyer is pro se, the lawyer might still have an unfair advantage over a nonlawyer.
- Ignoring Rule 4.2 wcould lead to “overreaching, disruption of the represented person’s client-lawyer relationship, and acquisition of uncounseled disclosures,” the opinion says.
- If the pro se lawyer wants to contact the represented party, consent must be obtained from the represented person’s lawyer.
- Advance agreements between counsel for the represented person and the pro se lawyer can avoid disputes and ethical problems.
Two members of the ABA Standing Committee on Ethics and Professional Responsibility dissented.
“They argue that the clear language of Model Rule 4.2 only applies to lawyers when they are representing a client, not when they represent themselves,” according to the ABA Journal. “The dissent concludes that the ‘rule should be amended to achieve the result advocated for in the majority opinion.’”
Source: Pro se lawyers must follow ‘no-contact’ rule, new ABA ethics opinion says (abajournal.com)
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