The well-known ancient phrase often attributed to Abraham Lincoln says that “He who constitutes himself has a fool for a client.” Instead of commenting on the advisability of involving himself in litigation, this paper will address the ethical problems that occur when an attorney is either a pro se litigant (representing himself or herself) or when another attorney is registered.
Is it ethical for an attorney to interact immediately with an adverse party either as an Attorney Contact with Opposing party?
Ethics and Permission Through ABA Rule 4.2:
Rules of Professional Conduct: American Bar Association (‘ ABA ‘) Model Rules of Professional Conduct (‘ Model Rules ‘) Rule 4.2 says that: when serving a client, the lawyer shall not interact with an individual whom the lawyer understands to be represented in the issue by another lawyer, unless the lawyer has the permission of the other lawyer or is permitted to do so by that lawyer.
While the American Bar Association (“ABA”) Model Rule 4.2 was conceived as not simply precluding in-house communication, California did not adopt Model Rule 4.2. See Formal Opinion 06-443, American Bar Association Standing Committee on Ethics and Professional Responsibility (see Formal Opinion 06-443, American Bar Association Standing Committee on Ethics and Professional Responsibility (5 Aug. 2006) (finding breach of Rule 4.2 would only happen if the in-house attorney is, in reality, a party to the issue and is represented either by the same lawyer as the organization or by its autonomous lawyer);
A significant element of the legal job includes communicating with other sides, many of whom may be represented by counsel, whether litigation or transactional. These relationships occur through multiple communication techniques, including in-person, written, telephone and electronic interaction. Technological developments have improved the techniques and ease with which messages are produced, including social media. As our capacity to interact continues to develop, it is essential for lawyers to fully understand the ethical prohibitions of contacting private groups.
ABA rule 4.2 does not specifically state whether or not it relates to lawyers who represent themselves. An attorney may claim that they are the client and have the right to discuss matters with an adverse party when they are a pro-se litigant. An attorney who is a pro-se litigant, however, is also the attorney representing himself, and it can be asserted that, due to Model Rule 4.2, the attorney is ethically forbidden from talking with an adverse party employed by lawyers without “the approval of the other attorney or permitted by law or court order.”
The Lawyer as a Pro Se Litigant: A lawyer performs the function of lawyer and client as a pro se litigant. The issue with Model Rule 4.2 lies therein: does the limitation on the attorney (as an attorney) limit the pro se attorney (as a litigant) from contacting an adverse party? Formal Opinion 2017-2000 in the Pennsylvania Bar Association.
PBA Opinion 2017-200 discovered, like other ethical views on this problem discovered, that “Rule 4.2 prevents an attorney representing himself from contacting his or her opponent if the attorney understands that the opponent is represented by lawyers.” PBA argued that: a pro se attorney represents him or herself as a client.
Therefore, the prose lawyer is forbidden from interacting with his or her opponent without the previous approval of the lawyer of his or her opponent by the literal language of Rule 4.2. This reading of Rule 4.2 is compatible with the majority of instances that dealt with the law and all the ethical views that considered the problem.
Attorney as an Adverse Party Represented by Counsel:
The more contentious part of our issue is how Rule 4.2 relates to lawyers representing an attorney. The attorney is not acting as both lawyer and client in this scenario, but rather is only a client who has maintained representation. PBA Opinion 2017-200 discovered that where an attorney is represented by lawyer, Rule 4.2 is not applicable, arguing that Rule 4.2 applicable only when an attorney acts as a representative of a client (or as a pro-se litigant). PBA indicated that: “Rule 4.2 is a” role rule “as it only refers to attorneys when they represent customers according to its conditions.
It does not apply to lawyers merely because they are lawyers.” (We notice that this seems somewhat at odds with the concept of defending individuals from the specific abilities of an attorney).
Other states have discovered that, because they are a lawyer, Rule 4.2 refers to an attorney at all moments. These countries consider Rule 4.2 to be an “identification rule.” A rule of identity is a law that relates to an attorney because they are an attorney.
These states, in determining that Rule 4.2 is an identification rule, discovered that the legal system benefited from a strategy that prevents lawyers from using their specific legal expertise and abilities to affect an opponent, even when both parties were depicted by lawyers.
In summary, Rule 4.2 (or an equivalent rule) is probable to restrict the contact or conversation of an attorney who is a pro se litigant with an adverse party represented by lawyers on the topic of outstanding litigation. However, it is not as evident when an attorney is a client represented by lawyers, and rule 4.2 (or a similar rule) may or may not apply.
It is probable that the implementation of Rule 4.2 in a particular jurisdiction depends on whether that jurisdiction considers Rule 4.2 to be a rule of “position” or “status.” In brief, as a litigant, before contacting an adverse party to address a case, an attorney would be careful to verify with local ethical guidelines and/or case legislation.
A lawyer shall not interact with a person whom the lawyer knows to be depicted in the matter by another lawyer when representing a client unless the lawyer has the approval of the other lawyer or is permitted by law or court order to do so.