The well-known old saying often credited to Abraham Lincoln states that “He who represents himself has a fool for a client.”  This article will not comment on the advisability of representing yourself in litigation, but will instead discuss the ethical issues that arise when an attorney is either a pro se litigant (representing him or herself) or when the attorney is represented by another attorney but still seeks to communicate directly with an adverse party.  Is it ethical for an attorney who is either a pro se litigant or represented by another attorney to communicate directly with an adverse party?

Rules of Professional Conduct

American Bar Association (“ABA”) Model Rules of Professional Conduct (“Model Rules”) Rule 4.2[1] states:

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 so by law or a court order.

ABA rule 4.2 does not state specifically whether or not it applies to attorneys who are representing themselves.  An attorney can argue that when they are a pro se litigant, they are the client and have the right to discuss matters with an adverse party.  However, an attorney who is a pro se litigant is also the attorney representing themselves, and it can be argued that pursuant to Model Rule 4.2, the attorney is ethically prohibited from speaking with an adverse party represented by counsel without “consent of the other lawyer or is authorized to do so by law or a court order.”[2] 

Likewise, arguments can be, and have been, made on both sides of whether it is ethical for an attorney who is represented by another attorney to speak with an adverse party.  The difference when an attorney is represented by counsel is that the attorney is not in the roll of attorney, but rather is in the sole role of client who has retained representation.

The Lawyer as a Pro Se Litigant

            As a pro se litigant, an attorney plays the role of both counsel and client.  Therein lies the problem with Model Rule 4.2: does the restriction upon the attorney (as an attorney) restrict the pro se attorney (as a litigation party) from contacting an adverse party?

            In Pennsylvania Bar Association Formal Opinion 2017-200[3], the Pennsylvania Bar Association (“PBA”) analyzed that question.  Pennsylvania Rule of Professional Conduct 4.2 mirrors the Model Rule exactly.  As such, it is of broad potential application. 

            In reviewing case law cited by the PBA, we note that all of the cases cited found that PBA Rule 4.2 applied to, and restricted, a pro se attorney from contacting an adverse party.  The reasoning behind these court rulings is that Pennsylvania and Model Rule 4.2 are meant to protect an adverse party from an attorney’s specialized skills in argument and persuasion.[4] 

             PBA Opinion 2017-200 found, as other ethics opinions on this issue have found, that “Rule 4.2 prohibits an attorney who represents himself or herself from contacting his or her adversary if the lawyer knows that the adversary is represented by counsel.”[5]  The PBA reasoned that:

A pro se lawyer represents himself or herself as a client. Therefore, the pro se lawyer is prohibited by the literal language of Rule 4.2 from communicating with his or her adversary without the prior consent of his or her adversary’s lawyer. This reading of Rule 4.2 is consistent with the majority of cases which have dealt with the rule and with all of the ethics opinions which have considered the issue.

New York, Hawaii, District of Columbia and Alaska have all come to the same conclusions as the PBA.[6]

Attorney as Adverse Party Represented By Counsel

            The more controversial portion of our question is how Rule 4.2 applies when an attorney is represented by counsel.  In this situation, the attorney is not acting as both counsel and client, but is rather is only a client who has retained representation. 

            PBA Opinion 2017-200 found that when an attorney is represented by counsel, Rule 4.2 does not apply, reasoning that Rule 4.2 only applies when an attorney is acting in the role of representing a client (or themselves as a pro se litigant).  PBA stated that: “Rule 4.2 is a “role rule” since by its terms it applies to lawyers only when they are representing clients.  It does not apply to lawyers simply because they are lawyers.”[7] (We note that this seems somewhat at odds with the notion of protecting people from an attorney’s specialized skills).

            Other jurisdictions have found that Rule 4.2 applies to a lawyer at all times, because they are a lawyer.  These jurisdictions view Rule 4.2 as an “identity rule.”[8]  An identity rule is a rule that applies to an attorney because of the fact they are an attorney.[9]  In determining that Rule 4.2 is an identity rule, these jurisdictions found that the legal system benefited from a policy preventing attorneys from using their specialized legal knowledge and skills to influence an adversary, even when both sides were represented by counsel. 

Conclusion

In conclusion, Rule 4.2 (or an analogous rule) likely restricts an attorney who is a pro se litigant from contacting or conversing with an adverse party represented by counsel about the subject matter of a pending litigation.  However, when an attorney is a client represented by counsel, it is not as clear, and Rule 4.2 (or an analogous rule) may or may not apply.  The application of Rule 4.2 in a specific jurisdiction likely rests upon whether that jurisdiction views Rule 4.2 as a “role” or an “identity” rule.  In short, as a litigant, an attorney would be wise to check with the local ethical rules and/or case law prior to contacting an adverse party to discuss a case.

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This article was prepared by Andrew R. Jones, Esq. and Corey M. Cohen, Esq. of the New York City-based law firm of Furman Kornfeld & Brennan LLP.  Andrew and Corey work as part of a team of 15 lawyers devoted to the defense of attorneys and other professionals in malpractice and disciplinary matters, as well as advising insurers in professional liability matters, including insurance coverage and litigation.  For more information about the above topic or the authors, please visit: www.fkblaw.com.

For more information on LPL coverage generally, contact USI Affinity today.

We trust that the above article was useful and thought provoking; however, please note that it is intended a general guide only, not a complete analysis of the issues addressed, and readers should always seek specific legal guidance on particular matters.

[1] For the purposes of this article, we will refer to Rule 4.2, but various jurisdictions often have different indexing of their Rules of Professional Conduct.  Please accept that when we refer to Rule 4.2 we also are referring to all analogous rules.

[2] See Rule 4.2.

[3] The opinion can be found at https://www.pabar.org/members/catalogs/Ethics%20Opinions/formal/F2017-200.pdf#search=%22practice%22 (hereinafter PBA Opinion 2017-200).

[4] See Id.; see also In re Hodge, 407 P3d 613 (Kan. 2017) (An attorney should not use his “specialized legal knowledge” interfere with an attorney/client relationship); see also In re Discipline of Schaefer, 117 Nev. 496, 508, 25 P3d 191, 200 (2001)(analogous ethical rule bars a pro se attorney from “directly contacting an opposing party who is represented by counsel)

[5] PBA Opinion 2017-200.

[6] See generally Id.

[7] Id.  

[8] See Id.; see also e.g. N.Y. Ethics Opinion 879 (Found at https://www.nysba.org/CustomTemplates/Content.aspx?id=4838); see also State Bar of Nevada Standing Committee on Ethics and Professional Responsibility Formal Opinion 8 (1987).

[9] See PBA Opinion 2017-200.