New ABA Opinion on the ‘No-Contact Rule’: The Text Might Not Set You Free
American Bar Association (ABA) Model Rule 4.2, the “no-contact rule,” provides that:
“In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order.”
The Rule provides for no contact between a lawyer and a represented party about the subject of the representation. Comment 4 to Rule 4.2, however, provides that parties “may communicate directly with each other.” This comment, when considered together with the text of the Rule, created a grey area when a lawyer represents themself pro se or is a party to a matter but has also hired other counsel. Can such a lawyer have contact with a represented party? Alternatively, does the context of the pro se representation matter, such as, for instance, when a lawyer who has never done any divorce-related legal work represents themself pro se in a divorce?
In September, the ABA issued Formal Opinion 502, which clarifies that the phrase “in representing a client,” applies to lawyers representing themselves pro se in any context.
The Opinion provides:
“[B]oth the language of the Model Rule and its purpose lead to the conclusion that the no-contact rule applies to pro se lawyers. Pro se lawyers represent themselves as “a client,” and direct pro se lawyer-to-represented person communication in such circumstances can result in a substantial risk of overreaching, disruption of the represented person’s client-lawyer relationship, and acquisition of uncounseled disclosures. That risk outweighs the sometimes-salutary benefit of direct communication.”
The Opinion goes on to state, “[u]nless a pro se lawyer has the consent of the other represented person’s lawyer or is authorized by law or court order to communicate directly with the other represented person about the subject of the representation, such communication is prohibited” (footnote omitted).
The ABA’s approach is consistent with the approach codified in both the Oregon Rules of Professional Conduct Rule 4.2, and in the Washington Supreme Court case of In re Haley, 156 Wn.2d 324, 126 P.3d 1262 (2006). The Oregon Rule says “[i]n representing a client or the lawyer’s own interests . . .” (emphasis added), and therefore explicitly includes a lawyer representing themself pro se in the scope of the Oregon Rule, unlike ABA Rule 4.2. In Haley, the Washington Supreme Court also consistently held “that a lawyer acting pro se is ‘representing a client’ for purposes of RPC 4.2(a).” 156 Wn.2d at 338.
There is still, however, some grey area and room for controversy in Model Rule 4.2. Oregon RPC 4.2 expressly states that it applies whenever a lawyer is “representing a client or the lawyer’s own interests.” Thus, the Oregon version would appear to apply not only when the lawyer is pro se but also when the lawyer is represented by other counsel.
In Washington, and under the ABA Opinion, however, it is not yet clear whether the Rule will apply to a represented (and in that sense, not pro se) lawyer. The text of the Model Rule and Washington’s adopted version, which limits the application of the rule to instances in which a lawyer “is representing a client,” suggest that a represented lawyer should not be subject to the Rule. But Opinion 502 suggests that the ABA would prohibit a represented lawyer from contacting a represented party. Despite the fact that Rule 4.2 is limited to situations in which a lawyer is “representing a client,” the committee concluded that “[p]ro se individuals represent themselves and lawyers are no exception to this principle.” Opinion 502 at 3. Incidentally, that is also the conclusion the Washington Supreme Court reached in Haley (and the case was cited for that proposition in the Opinion).
Opinion 502 drew a rare dissent by two committee members who agreed that “[w]hile the purpose of the rule would clearly be served by extending it to self-represented lawyers, its language clearly prohibits such application.” Opinion at 6-7 (emphasis in original). The dissent also pointed out that the text of Rule 4.2 together with Comment 4 are likely to lead an unsuspecting pro se lawyer to conclude he or she is not subject to the rule when acting in the lawyer’s own interests. In other words, the ABA has obscured clear text in favor of effectuating a policy. If the ABA is going to take such steps, it should also index all of its formal opinions to the rules cited therein and make them publicly available so that unsuspecting lawyers have a fighting chance to follow the rules.
Opinion 502 is a good reminder for lawyers to not only consult the rules as issues arise, but also to dig deeper into relevant commentary and formal opinions to get a full picture of how best to proceed. For lawyers practicing in jurisdictions that have adopted Model Rule 4.2, such as Washington, they should not contact a represented party when acting pro se, and they should think carefully about doing so even if they are represented. A lawyer accused of violating the rule may still have textual arguments to raise in his or her defense under these circumstances, but up-front risk management is generally the safer approach. For lawyers practicing in Oregon, the more explicit text of Oregon’s rule gives better guidance when a lawyer is acting pro se and suggests they should not contact a represented party even when they are represented (lest doing so be interpreted as acting in the “lawyer’s own interests”).
This article summarizes aspects of the law and does not constitute legal advice. For legal advice for your situation, you should contact an attorney.
- Of Counsel