Formal Opinion 133 Ethical Duties of a Lawyer Who Is a Party to a Matter Speaking With a Represented Party

JurisdictionColorado,United States
CitationVol. 46 No. 11 Pg. 74
Pages74
Publication year2017
46 Colo.Law. 74
Formal Opinion 133 Ethical Duties of a Lawyer Who Is a Party to a Matter Speaking with a Represented Party
Vol. 46, No. 11 [Page 74]
The Colorado Lawyer
December, 2017

CBA ETHICS COMMITTEE

Adopted October 27, 2017

Facts

A lawyer who is a party in a legal matter desires to discuss settlement with the opposing party without seeking the consent of the opposing party’s lawyer. The lawyer/party does not represent any other party in the lawsuit.

Question Presented

May a lawyer who is a party in a legal matter communicate directly with a represented adverse party concerning the matter without the consent of the adverse party’s lawyer?

Discussion

Rule 4.2 of the Colorado Rules of Professional Conduct (Colo. RPC or Rules) provides that: “[i]n 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.”[1]

There are two scenarios to consider when applying Colo. RPC 4.2 to a lawyer who is a party to a case: (1) when the lawyer/party is representing himself or herself in the matter; and (2) when the lawyer/party is represented by counsel.[2] In the first instance, the Colorado Supreme Court Office of the Presiding Disciplinary Judge (OPDJ) recently held that a lawyer appearing pro se was acting as his own lawyer in the matter and, therefore, violated Rule 4.2 when he communicated directly with a represented adverse party.[3] The OPDJ specifically rejected the lawyer/party’s argument that he was communicating with the opposing party as a pro se party, not as a lawyer “representing a client” under the plain language of the Rule.[4] The OPDJ concluded that Rule 4.2 applies to a lawyer’s communication while acting pro se, based on relevant Colorado precedent, the weight of authority from other jurisdictions, and the OPDJ’s assessment that such a conclusion supports the purposes of the rule.[5] Based on an ABA formal opinion, the OPDJ identified three purposes of Rule 4.2: (1) to provide protection of the represented person against overreaching by adverse counsel; (2) to safeguard the client–lawyer relationship from interference by adverse counsel; and (3) to reduce the likelihood that clients will disclose privileged or other information that might harm their interests.[6] The recent OPDJ decision is...

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