Sunday, October 2, 2022

New ABA Ethics opinion on whether pro-se lawyers can communicate with represented person

 The ABA Standing Committee on Ethics and Professional Responsibility has issued a new Formal Ethics Opinion (No. 502), on communications with a represented person by a pro-se lawyer.  You can read (and download) the full text here.  The summary is as follows: 

Under Model Rule 4.2, if a person is represented in a matter, lawyers for others in the matter may not communicate with that represented person about the subject of the representation but instead must communicate about the matter through the person’s lawyer, unless the communication is authorized by law or court order or consented to by the person’s lawyer.

When a lawyer is self-representing, i.e., pro se, that lawyer may wish to communicate directly with another represented person about the subject of the representation and may believe that, because they are not representing another in the matter, the prohibition of Model Rule 4.2 does not apply. In fact, 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.

Accordingly, unless the pro se lawyer has the consent of the 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. In this context, if direct pro se lawyer-to-represented person communication about the subject of the representation is desired, the pro se lawyer and counsel for the represented person should reach advance agreement on the permissibility and scope of any direct communications.

For a comment on the Opinion, go to Ethical Grounds, the blog of the Bar Counsel for Vermont. 

The ABA Journal also has a short post on the opinion, here.

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