ABA opinion concludes that the ” no-contact” rule applies to self-represented lawyers. Should we amend Vermont’s rule?

The issue of whether a self-represented lawyer is subject to Rule 4.2’s “no-contact” provision is not one with which I have much experience. Whether as disciplinary counsel or when I was the screener, I never reviewed a single complaint alleging such a violation.  Nor has the topic ever been broached in the context of an ethics inquiry. My only real work on the topic was in this post about the first decision ever issued after Vermont adopted a formal professional responsibility program.[1]

Yesterday, the ABA Standing Committee on Ethics and Professional Responsibility issued Formal Opinion 502: Communication with a Represented Person by a Pro Se Lawyer.  The Committee concluded that a self-represented lawyer is bound by Rule 4.2.  That is, when self-representing, a lawyer cannot communicate about the matter with another person who the lawyer knows to be represented in the matter without the consent of the represented person’s lawyer or unless the communication is otherwise authorized by law.

I appreciate the opinion for several reasons.

For one, the opinion is well-researched and provides interesting and informative detail about the history of the debate as to whether Rule 4.2 applies to a self-represented lawyer. For another, I don’t necessarily disagree with the conclusion. As the Committee notes, “[t]he key evils intended to be managed by Model Rule 4.2 are (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.”  Thus, it makes sense to apply the rule to a self-represented lawyer.

Still, the opinion gives me pause. While I support the general conclusion, I’m drawn to the dissenting members’ view.  That pull leaves me wondering if we should amend V.R.Pr.C. 4.2. Alas, before I discuss the dissent, a bit more background is required. 

Comment [4] to both the ABA Model Rule and Vermont’s rule includes the following statement:

  • “Parties 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 justified to make.”

The tension between this statement and the text of the rule drives the debate. Is the self-represented lawyer fish or fowl?  That is, a “lawyer” subject to Rule 4.2? Or a “party” to whom Comment [4] applies?  In Formal Opinion 502, the Committee answered by stating:

  • “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.”

Again, I don’t necessarily disagree. However, as I indicated, I remain drawn to the dissent.

Like me, the dissent doesn’t disagree with the Committee’s conclusion, stating:

  • “It is not the result I object to, it is the mode of rule construction that I cannot endorse. Self-representation is simply not ‘representing a client,’ nor will an average or even sophisticated reader of these words equate the two situations.”

The dissent continues:

  • “When an attorney consults the rule, it is highly unlikely that the phrase “in representing a client” will be considered to include self-representation. If the attorney goes further and consults Comment [4], the Comment will assure the attorney that, ‘Parties to a matter may communicate directly with each other.’ Given this apparent clarity, what will tip off the attorney that further research is required?”

Perhaps the same could be said for the represented person’s lawyer.  Which might explain never having received a complaint or inquiry on this topic in 24 years.

Finally, the dissent argues:

  • “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.”

I tend to agree. And amending the rule wouldn’t be difficult.[2]  Here’s the relevant portion of Oregon’s Rule 4.2, with my emphasis added.

  • “In representing a client or the lawyer’s own interests, a lawyer shall not communicate or cause another to communicate on the subject of the representation with a person the lawyer knows to be represented by a lawyer on that subject unless: (a) the lawyer has the prior consent of a lawyer representing such other person; (b) the lawyer is authorized by law or by court order to do so . . .”

In any event, that’s why I post today. To raise the question of whether to amend Rule 4.2. 

To me, it’s an interesting question. Again, I don’t disagree with the conclusion that a no-contact rule should apply to self-represented lawyers.[3] However, many of the rules include phrases like “when representing a client” or “in representing a client.” If, for the purposes of Rule 4.2, a self-represented lawyer is “representing a client,” it’s interesting to consider the ramifications of construing other rules with like phrases to apply similarly.

I’m at risk of going on and on.  So, I’ll stop.  Please feel free to share thoughts, either in the comment section or by email to Michael.Kennedy@vermont.gov

As always, let’s be careful out there.

[1] PCB Decision 1 issued in August 1990, the same month that I began my first year in law school. While ostensibly about the application of no-contact rule to a self-represented attorney, the post was an excuse for me to include a picture taken around the same time. In that legions of Vermont lawyers may not now about my former flow, I’m sharing it again.

[2] Nor would it be the first time the rule was amended in response to a debate over its meaning. For many years, the rule prohibited communication with a “represented party.” Indeed, in 1994, the VBA issued this advisory opinion in which it stated that “[t]he use of the term ‘party’ . . . read in light of the purpose of the rule is reasonably interpreted as extending to any person represented by counsel in matters closely related to the subject matter of the client’s representation.” The next year, and in response to the debate, the ABA changed the Model Rule to “represented person.”  Vermont followed suit when it adopted the Model Rules in 1999.

[3] There are situations that make me wonder if the rule, either as currently written or amended, should include safe harbors that allow a self-represented lawyer to communicate with a represented person in specified situations. The safe harbors are a topic for another day.

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