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.
Your law practice has unique characteristics that identify it to the public and distinguish it from other firms. Are you maximizing those strengths? Are you blending all the disparate elements of your practice – experience, expertise, personnel, website, logo, font type, community involvement – into a clear, consistent and compelling law firm brand? Join us on March 29 at 12 noon CST for our one-hour CLE webinar Law Firm Branding: Practical Tips and Ethical Traps. You’ll learn the basics of branding, the relevant Rules of Professional Conduct on messaging, marketing and advertising, and best practices for compliance with the ADA and other laws. And you’ll learn how to clearly and concisely articulate who you are, what you do, and why you’re the right lawyer for the job. This course is taught by an authority on legal ethics and a tech expert who creates lawyer websites that are ethical and effective. Yet another benefit of the Alta Pro Lawyers Risk Purchasing Group! Click here to register.
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.’”
Do you practice in Wisconsin, Texas, Minnesota, Ohio, Illinois, Indiana or Michigan? Is your professional liability coverage managed through Alta Pro? If so, you’re automatically a member of the Alta Pro Risk Purchasing Group (RPG), which offers a wealth of benefits for your practice: free, cutting-edge CLE webinars featuring top experts tackling timely topics; the Pro Practice Playbook; the Pro Practice Blog; Reminger’s ProLink risk management assistance; Reminger’s Claim Repair Hotline; discounts on CLIO practice management software; tax savings on health insurance; and access to the Risk Pro, who can help keep your firm safe and successful. Register here and start enjoying your Alta Pro RPG benefits.