A Lawyer Who is a Party to a Legal Matter May Communicate Directly With Represented Adversary

lets-talkA lawyer who is a party to a legal matter may communicate directly with a represented adverse party without the consent of the adversary’s lawyer. See Prof’l Ethics Cmte. for the State Bar of Tx., Op. No. 653 (Jan. 2016). Rule 4.2 provides that a lawyer “in representing a client” 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 by law to do so. See Tx. Rules of Prof’l Cond. R. 4.02(a); La. Rules of Prof’l Cond. R. 4.2(a). According to Opinion 653, this rule simply “does not apply to a lawyer who is a party to a lawsuit or transaction but does not represent any other party in the matter.”

The committee’s opinion is correct. A lawyer who contacts an adversary on the lawyer’s own behalf does so in an individual rather than a representative capacity. The plain language of the rule makes it clear that its prohibition applies only when the lawyer communicates with an adversary while “representing a client.” See Rule 4.2; see also Restatement (Third) the Law Governing Lawyers § 99, cmt. e (“A lawyer representing his or her own interests per se may communicate with an opposing represented nonclient on the same basis as other principals.”).

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