CHAPTER 3 - 3-2 DEALING WITH UNREPRESENTED PARTIES

• Jurisdiction: United States

3-2 Dealing with Unrepresented Parties

In dealing with an unrepresented person on behalf of a client, the lawyer shall not state or imply that the lawyer is disinterested.¹⁵ If the lawyer knows or reasonably knows that the person misunderstands the lawyer's role, the lawyer should take remedial action.¹⁶ A lawyer should not give legal advice to a third-party who has interests adverse to the lawyer's client except advice to obtain a lawyer.¹⁷ In Paradise v. Salvatore, a lawyer was presented and accepted a reprimand where she gave advice to a lender about a commercial loan transaction when she had been retained by another.¹⁸

This rule is designed to prevent sharp dealing by lawyers who interact with unsophisticated members of the public. Problems can arise under Rule 4.3 when a person believes that the lawyer is acting on their behalf or in their best interests. While the rule applies both in cases of actual and implied knowledge, it can be difficult in some circumstances to determine exactly what a person's subjective understandings are.

In some instances, lawyers attempt to mediate or adjust disputes between parties without carefully explaining their role. This can trigger a clam of a Rule 4.3 violation or a claim of conflict. One of the early invocation of the concept of the "lawyer for the situation" involved Louis Brandeis. During his Supreme Court hearings in the early part of the 20th century, Brandeis' opponents brought up his conduct in something called "The Lennox Affair" wherein Brandeis has been had met with the son of an owner of a distressed company and an attorney for one of its creditors. Brandeis gave them some legal advice on how a dispute might be handled. Later, when Lennox went into bankruptcy, Brandeis represented Lennox's creditors in the case. Partners in the Lennox enterprise claimed a conflict of interest. Brandeis denied that he had ever agreed to represent Lennox, and described himself as "counsel for the situation." As his role had not been to represent the interests of one party against the other, but to attempt to assist the parties in finding a reasonable and mutual way to resolve their dispute, Brandeis felt that he had incurred no attorney-client responsibilities to either party to the discussion and, thus, was free later on to accept representation adverse to Lennox.¹⁹

An excellent discussion of both the Brandeis affair and of the problems of multiple representation can be found in a law review article by John...