The creative juices have run dry this week. So, in a blatant ripoff of a now passe Facebook phenomenon, I’m posting a Throwback Thursday column. Today, we go back to 1990.
Things were a lot different in 1990. When the year began, Nelson Mandela was still in prison, the Berlin Wall was still standing, and Roger Clemens still played for the Red Sox & had yet to do this.
In legal ethics, the old Professional Conduct Board (“PCB”) issued its very first decision in August of 1990. Also that month, Vermont’s future bar counsel, who would eventually harp incessantly on tech competence, left for law school armed with a typewriter. He wouldn’t buy his first computer until he was a 2L.
Oh, and he had hair:
Now, before we move on, timeout for a quick history lesson:
- In 1990, the PCB came into existence. Before then, there was no conduct board. The Supreme Court had original jurisdiction over lawyer discipline cases.
- The PCB was replaced by the Professional Responsibility Board in 1999
- The PCB heard cases; the PRB does not.
- In 1990, the Code of Professional Responsibility (and its DR’s and Ethical Considerations) applied.
- The Code was replaced by the Rules of Professional Conduct in 1999.
So, in 1990, the PCB issued its very first decision. It’s here. Here’s what happened:
- Respondent represented Buyer in a real estate transaction.
- Respondent failed to discover that Third Party had an option to purchase the property from seller.
- Buyer eventually had to pay Third Party to relinquish the option.
- Through Counsel, Buyer threatened to sue Respondent.
- Respondent’s carrier advised him to settle.
- Respondent, without Counsel’s permission, wrote directly to Buyer asking Buyer not to sue.
- Counsel filed an ethics complaint against Respondent.
- The PCB admonished Respondent for violating DR 7-104(A), the rule that prohibited lawyers from communicating with a represented person on the subject matter of the representation.
- Under the Code, Ethical Consideration 7-18 made it clear that DR 7-104 applied to a lawyer who was a party to a matter, whether appearing pro se or represented by counsel.
I wonder whether the conduct at issue in the PCB’s first reported decision remains a violation today.
Today, Respondent’s conduct would be analyzed under Rule 4.2. The rule says:
- “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 by law or a court order.”
Returning to the facts of PCB 1, it seems clear that Respondent’s conduct would violate Rule 4.2, right?
Loyal readers know my answer . . .
As I mentioned above, EC 7-18 made it clear that DR 7-104 applied to lawyers who represented themselves. The comments to Rule 4.2 do not include such clarity. Indeed, Comment  states:
- “[p]arties to a matter may communicate directly with each other and a lawyer is not prohibited from advising a client concerning a communication that the client is legally entitled to make.” (emphasis added).
The language in EC 7-18 was not carried forward in the new rules.
So, which applies to lawyers who represent themselves? The rule’s plain language? Or, the comment?
Most jurisdictions take the position that Rule 4.2 applies to lawyers. In particular, the majority view is that a lawyer who is self-represented is “representing a client” and, thus, is subject to the rule. For an excellent analysis of the majority position, see this opinion from the Washington Supreme Court.
However, there’s another view, with a twist.
In Pinsky v. Statewide Grievance Comm’n, the Connecticut Supreme Court considered a case in which a lawyer had been sanctioned for violating Rule 4.2. The lawyer (Pinsky) was involved in a dispute with his landlord. Both Pinsky and landlord had counsel. Pinsky communicated directly with landlord without permission from landlord’s counsel.
The Connecticut Supreme Court concluded that Pinsky had not violated the no-contact rule. The court focused on the fact Pinsky had counsel and, therefore, was not representing a client when he contacted landlord. Pinsky v. Statewide Grievance Comm’n, 578 A.2d 1075 (Conn. 1990).
The facts in PCB 1 are not square with Pinsky in that Pinsky had a lawyer, while the respondent in PCB 1 did not. Still, it would seem odd to sanction Respondent for doing something that, under Pinsky, he’d have been authorized to do if he had only hired himself a lawyer.
Personally, I ascribe to the view that the New York State Bar Association expressed in Ethics Opinion 879. In the opinion, which was issued in 2011, the NYSBA concluded that all lawyers “whether they are pro se parties or represented parties or representatives of other parties in a matter” are subject to Rule 4.2.
That being said, I’m cognizant of the fact that Comment 4 to Vermont’s rule indicates that parties may always communicate with each other. Further, I struggle to square my position with practical realities. For instance, if a lawyer is self-represented in a divorce, must the lawyer go through spouse’s counsel on every little issue that arises before a final hearing?
This law review article includes persuasive arguments on each side of the issue.
So, there you have it. In our first throw back, I think that the conduct that resulted in PCB 1 might implicate the rules today. That being said, if the complaint alleging the exact same conduct were filed today, I’d give strong consideration to referring it for non-disciplinary dispute resolution as opposed to referring it for a disciplinary investigation.