The American Bar Association Standing Committee on Ethics and Professional Responsibility has released a formal opinion that seeks to clarify the interpretation of the ABA model rule related to a lawyer’s communication with represented persons when the lawyer is self-representing or pursuing the case pro se.
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. 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.
Commonly called the “no-contact” or “anticontact” rule, the guidance has been part of the ABA Model Rules of Professional Conduct since its inception in 1983. But issues have arisen related to situations when a lawyer is acting pro se in the matter.
Formal Opinion 502 notes that “both the language of the rule and its established purposes support the conclusion that the rule applies to a pro se lawyer because pro se individuals represent themselves and lawyers are no exception to this principle.” It also notes that while the general prohibition of Model Rule 4.2 is “ubiquitous in U.S. jurisdictions,” as applied to pro se lawyers the scope of the rule is less clear.
“The rule ‘contributes to the proper functioning of the legal system’ by preventing lawyers from overreaching, from interfering in other lawyers’ relationships with their clients and from eliciting protected information via ‘uncounseled disclosure,’” the opinion said. “It is not possible for a pro se lawyer to ‘take off the lawyer hat’ and navigate around Rule 4.2 by communicating solely as a client. … In general, the rules of professional conduct establish limits on lawyer behavior, not that of their clients.”
Two of the 10 members of the standing committee offered a written dissent to Formal Opinion 502 although they did not take issue with its intent.
“Thoughtful commentators have identified the problems with Model Rule 4.2’s language and inconsistent interpretations, and (they) have recommended fixing the rule rather than straining to achieve its purposes when lawyers represent themselves,” they said. “By leaving this rule in place, we are also leaving in place a trap. The rule should be amended to achieve the result advocated for in the majority opinion.”