The American Bar Association Standing Committee on Ethics and Professional Responsibility released a formal opinion to clarify the ABA rules around lawyers representing themselves.
Released Sept. 28, the opinion dives into the interpretation of the ABA model rule related to a lawyer’s communication with represented persons when the lawyer is self-representing or pursuing a case pro se.
Formal Opinion 502 says 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 ABA said the formal opinion clarifies a 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 ABA said the guidance has been part of its Model Rules of Professional Conduct since its inception in 1983. But issues have arisen when a lawyer is acting pro se.
The opinion notes “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.”
According to the ABA’s announcement, two of the 10 members of the standing committee offered a written dissent to Formal Opinion 502 although they didn’t 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,” the dissenting members 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.”
The ABA noted its ethics committee periodically issues ethics opinions to guide lawyers, courts and the public in interpreting and applying ABA model ethics rules to specific issues of legal practice, client-lawyer relationships and judicial behavior.