Rule 4.3. Dealing with Unrepresented Person

In dealing on behalf of a client with a person who is not represented by counsel, a lawyer shall not state or imply that the lawyer is disinterested. When the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer’s role in a matter, the lawyer shall make reasonable efforts to correct the misunderstanding. The lawyer shall not give legal advice to an unrepresented person, other than the advice to secure counsel, if the lawyer knows or reasonably should know that the interests of such a person are or have a reasonable possibility of being in conflict with the interests of the client.

Background

The Louisiana Supreme Court adopted this rule on January 21, 2004. It became effective on March 1, 2004, and has not been amended since. This rule is identical to ABA Model Rule of Professional Conduct 4.3 (2002).

Giving Legal Advice to Unrepresented Persons

In 2002, the ABA added to the corresponding model rule a prohibition against giving legal advice to unrepresented persons. Under former ABA Model Code of Professional Responsibility, DR 7-104(A)(2), a lawyer was prohibited from giving advice to an unrepresented person, other than the advice to secure counsel. The Commission recommended reinstating the substance of this provision after considering reports that it was not uncommon for lawyers to provide legal advice in negotiations between lawyers and unrepresented parties.

The reason for the initial decision to delete the Model Code prohibition from text was the difficulty of determining what constitutes impermissible advice-giving. The Commission recommended that language be included in the Comments to address the application of the textual prohibition in some common situations. Although the line may be difficult to draw, it is important to discourage lawyers from overreaching in their negotiations with unrepresented persons. See ABA Ethics 2000 Commission Revision Notes to Model R. 4.3 (2002).

Comments to ABA Model Rule 4.3

[1] An unrepresented person, particularly one not experienced in dealing with legal matters, might assume that a lawyer is disinterested in loyalties or is a disinterested authority on the law even when the lawyer represents a client. In order to avoid a misunderstanding, a lawyer will typically need to identify the lawyer’s client and, where necessary, explain that the client has interests opposed to those of the unrepresented person. For misunderstandings that sometimes arise when a lawyer for an organization deals with an unrepresented constituent, see Rule 1.13(d).

[2] The Rule distinguishes between situations involving unrepresented persons whose interests may be adverse to those of the lawyer’s client and those in which the person’s interests are not in conflict with the client’s. In the former situation, the possibility that the lawyer will compromise the unrepresented person’s interests is so great that the Rule prohibits the giving of any advice, apart from the advice to obtain counsel. Whether a lawyer is giving impermissible advice may depend on the experience and sophistication of the unrepresented person, as well as the setting in which the behavior and comments occur. This Rule does not prohibit a lawyer from negotiating the terms of a transaction or settling a dispute with an unrepresented person. So long as the lawyer has explained that the lawyer represents an adverse party and is not representing the person, the lawyer may inform the person of the terms on which the lawyer’s client will enter into an agreement or settle a matter, prepare documents that require the person’s signature and explain the lawyer’s own view of the meaning of the document or the lawyer’s view of the underlying legal obligations.

Annotations

Generally

This rule requires a lawyer to be forthright about his or her role in a matter when dealing with unrepresented lay persons. More particularly, it requires a lawyer to explain his role to the third person if a third party is laboring under a misunderstanding. La. Rules of Prof’l Conduct R. 4.3 (2004); La. State Bar Ass’n v. Harrington, 585 So. 2d 514, 517 (La. 1990). In explaining his or her role, the lawyer must be truthful and must not misrepresent where his or her loyalties lie. See, e.g., La. Rules of Prof’l Conduct R. 4.1(a) (2004) (stating that a lawyer shall not “make a false statement of material fact . . . to a third person”); see also Restatement (Third) of the Law Governing Lawyers § 103 (2000) (prohibiting a lawyer from “mislead[ing] the non-client . . . concerning the identity and interests of the person the lawyer represents”); Model Rules of Prof’l Conduct R. 4.3 (stating that a lawyer “shall not state or imply that the lawyer is disinterested”).

A lawyer who interacts with a potentially adverse third party must do so with care. A lawyer violated Rule 4.3 when the lawyer prepared an assignment of rights form for the lawyer’s client to present to an unrepresented person. See In re Guilbeau, 35 So. 3d 207, 214 (La. 2010). The lawyer failed to disclose a potential conflict of interest between the client and the unrepresented party prior the third party’s receipt of the assignment document. Id. The Louisiana Supreme Court noted in Guilbeau, 35 So. 3d at 214, that Rule 4.3 imposes three requirements upon a lawyer who deals with an unrepresented person:

Thus, Rule 4.3 has three components which come into play whenever a lawyer is dealing on a client’s behalf with a person is not represented by an attorney: first, the lawyer may not imply disinterestedness; second, the lawyer must clear up any misunderstanding about his or her role; and third, the lawyer may not give legal advice if the unrepresented person’s interests may be adverse.

Giving Legal Advice

This rule prohibits a lawyer from giving “legal advice” to an adverse unrepresented person, “other than the advice to secure counsel.” La. Rules of Prof’l Conduct Rule 4.3 (2004). The Louisiana Fourth Circuit Court of Appeals has held that the term ‘advice’, “in the legal context, contemplates something of more substance” than a suggestion that the unrepresented person “have her son call the bank.” See First Nat’l Bank of St. Bernard v. Assavedo, 764 So. 2d 162, 164 (La. Ct. App. 4th Cir. 2000).

Unrepresented Employees of Business Organizations

A lawyer retained by a business organization represents the organization distinct from its constituents. La. Rules of Prof’l Conduct R. 1.13(a) (2004). It is common for the organization’s employees to be confused about whether the lawyer represents them and/or the organization. Louisiana Rule 1.13(f) provides that a lawyer representing an organization must “explain the identity of the client,” only when the interests of the organization and the client diverge. See id. Rule 1.13(f). In contrast, Louisiana Rule 4.3 imposes an affirmative obligation upon the lawyer to explain to the unrepresented person the lawyer’s role in the matter if there is a reasonable likelihood of a misunderstanding. Id. Rule 4.3.

Disciplinary Sanctions

Absent aggravating or mitigating circumstances, the following sanctions are generally appropriate in cases involving a lawyer’s attempt to influence a judge, juror, prospective juror or other official by means prohibited by law: disbarment, when a lawyer improperly communicates with someone in the legal system with intent to affect the outcome of the proceeding, and causes significant or potentially significant interference with the outcome of the legal proceeding; suspension, when a lawyer engages in communication with an individual in the legal system when the lawyer knows that such communication is improper, and causes injury or potential injury to a party or causes interference or potential interference with the outcome of the legal proceeding; reprimand, when a lawyer is negligent in determining whether it is proper to engage in communication with an individual in the legal system, and causes injury or potential injury to a party or interference with or potential interference with the outcome of a legal proceeding; and, admonition, when a lawyer engages in an isolated instance of negligence in improperly communicating with an individual in the legal system, and causes little or no actual or potential injury to a party, or causes little or no actual or potential interference with the outcome of the legal proceeding. See ABA Stds. for Imposing Lawyer Sanctions std. 6.3 (1992) (Improper Communications With Individuals in the Legal System); id. stds. 6.31-6.34.

Notes

This page was updated on August 5, 2013.