Model Rule 4.2 is often referred to as the “no-contact” rule, prohibiting lawyers from contacting represented parties regarding the subject matter of the representation without first obtaining a court order or the consent of the other party’s lawyer. Just last month, the ABA issued Formal Opinion 502, which warns pro se lawyers—that is, lawyers who are representing themselves as a party in the litigation—that the “no-contact” rule still applies to them despite the fact that the lawyer is also a party to the representation.
No ability to remove the lawyer hat
As written, Rule 4.2 applies to lawyers in their representation of a client. Of course, most often lawyers represent someone else. But what about when a lawyer is pro se, i.e. representing herself? The “no-contact rule” generally allows the parties to a dispute to communicate directly with each other, so why can’t a lawyer who is the party talk to his opponent? See Comment 4 to Model Rule 4.2. While the first clause of the “no-contact rule”— “In representing a client, …” can confuse the issue, the main policies behind Rule 4.2 are still in play. The “no-contact” rule is designed to prevent “(1) overreaching and deception; (2) interference with the integrity of the client-lawyer relationship; and (3) elicitation of uncounseled disclosures, including inappropriate acquisition of confidential lawyer-client communications.” Direct communications between pro se lawyers and represented parties significantly jeopardizes all three policy goals. The Standing Committee accordingly reasoned that it is impossible for pro se lawyers to remove their lawyer hat to circumvent Rule 4.2. The risks are too high.
Self-representation vs. client representation; a distinction without a difference
In Opinion 502, the Standing Committee clarifies that a pro se lawyer is still “representing a client” for purposes of Rule 4.2, even if they are their own client. Upholding the underlying policy considerations is important and serves as the basis for this determination. These policy considerations are crucial to the functioning of the attorney-client relationship and the fact that the lawyer is representing herself does not serve as a sufficient basis to disregard them.
There is, however, a dissenting view. The dissent agrees that the purpose of Rule 4.2 is served by extending it to pro se lawyers, but that the language contained in the Rule does not allow for such application, notwithstanding the number of opinions that have adopted Opinion 502’s approach (“error compounded is still error”). Even a sophisticated reader, the dissent argues, would not equate self-representation with representing a client and questions exactly what in the language of the Rule would lead a pro-se attorney to conclude that additional research is required. “The lesson here must be that nothing is clear.” The dissent questions whether the text of the Rule means what it says or what we want it to say. The dissent expresses that a trap is created by leaving this rule as is and that it should be amended to accomplish the outcome promoted in the majority opinion.
Proceed with caution
Some jurisdictions – like Texas – have adopted the “lawyer is a client” approach and permit contact. Other jurisdictions—such as DC and New York, appear to be in alignment with Opinion 502. While states are clearly split on the interpretation of whether the “no-contact” rule extends to pro se lawyers, until your jurisdiction amends the wording of the rule or otherwise authorizes the conduct through an opinion, the wiser course may be avoiding the trap.