4.3:200 DEALING WITH UNREPRESENTED PERSONS

• Jurisdiction: Arizona

4.3:200 Dealing with Unrepresented Persons

Both ER 4.3 and MR 4.3 are broader in their reach than the roughly corresponding provision of the former Code of Professional Responsibility, DR 7-104(A)(2), which applied only to giving legal advice to an unrepresented person. The Comments make clear that ER 4.3 applies not only to that situation, but also to any dealings between a lawyer and a person not represented by counsel. In dealing with a person not represented by counsel, a lawyer must not state or imply that the lawyer is disinterested. As ER 4.3 specifically provides: "When the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer's role in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding."

In Arizona Ethics Opinion No. 87-25, the Ethics Committee ("Committee") concluded that, while a plaintiff's lawyer may interview and take a statement from a defendant whom the lawyer has named in a pending action but who has neither been served nor retained counsel, the lawyer must first inform that person that he or she has been named as a defendant in an action filed by the lawyer, that the lawyer represents the plaintiff in the action, that the lawyer is seeking information in connection with the pending litigation, and provide a description of the case and inform the person that any disclosures he or she makes will be considered voluntary.

In Arizona Ethics Opinion No. 91-21, the Committee determined that a county attorney must make reasonable efforts to ensure that custodial and non-custodial parents who seek assistance from the County Attorney's Child Support Services Division understand clearly the relationship of the County Attorney's Office to them in its efforts to obtain support payments or to modify existing support orders.

In Arizona Ethics Opinion No. 96-02, the Committee concluded that an attorney handling an action brought against a homeowners' association may communicate with general members of the association who are not board members or officers and are not in a position to bind the association, without the prior consent or presence of counsel for the association. This was because those members "do not have any 'managerial responsibility' on behalf of the association, their acts or omissions cannot be imputed to the association for purposes of liability and their statements cannot constitute admissions of the association. The general members of the association, therefore, cannot be considered 'parties' for the purposes of ER 4.2. Consequently, communicating with these general members about the litigation without the association's attorney being present is not ethically proscribed."

The Committee's analysis in Opinion No. 96-02 included discussion of Arizona Ethics Opinion No. 203 and Arizona...