Office of the General Counsel
| Publication year | 2022 |
| Pages | 0038 |
BY PAULA FREDERICK
A Fool for a Client?
Can a lawyer representing herself in a matter talk about the case to a represented opposing party, without first getting permission from their lawyer?
“He’s my husband!” the adverse party exclaims into the phone. “What do you mean I can’t talk to him without your OK?”
“You’re getting divorced,” you remind her. “I’m his lawyer. Take a look at Rule 4.2—the ‘no contact’ rule. ... To talk to him about the divorce, you have to go through me!”
“But I don’t have a client this time; I’m just a pro se litigant.”
“So you’re representing yourself!” you point out. “You know what they say about lawyers representing themselves,” you mutter as you hang up the phone.
Can a lawyer representing herself in a matter talk about the case to a represented opposing party, without first getting permission from their lawyer?
Until recently my answer would have been “of course!” But maybe I’m wrong ...
A new opinion by the American Bar Association Standing Committee on Ethics & Professional Responsibility[1] finds that a pro se lawyer has a client—themselves. That means Rule 4.2[2] applies, and the lawyer cannot communicate about the subject of the representation with someone who is represented by a lawyer in the same matter. Comment 1 to the Model Rule[3] explains its laudable rationale:
This Rule contributes to the proper functioning of the legal system by protecting a person who has chosen to be represented by a lawyer in a matter against possible overreaching by other lawyers who are participating in the matter, interference by those lawyers with the client-lawyer relationship and the uncounselled disclosure of information relating to the representation.
Two members of the ABA Committee disagreed with the outcome of the Formal Opinion and issued a rare dissent. The dissent makes the point that “self-representation is simply not the same as ‘representing a client.’” They urge the group to consider amending the rule to specifically cover pro se lawyers, rather than pretend that the existing language means that a pro se lawyer has a client.
Georgia’s Formal Advisory Opinion Board will soon decide the issue under our Rule 4.2; a Board subcommittee is drafting an opinion on this same topic. Bar members will have the opportunity to weigh in when the Board issues a draft opinion. Stay tuned.
Paula...
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