New ABA Opinion Addresses Communication With A Represented Person By A Pro Se Lawyer

On September 28, 2022, the American Bar Association Standing Committee on Ethics and Professional Responsibility published Formal Opinion 502 addressing whether a pro se lawyer may communicate with a person represented by counsel. See ABA Comm. on Ethics & Prof’l Responsibility, Formal. Op 502 (Sept. 28, 2022). The Committee opined that “unless the pro se lawyer has the consent of the represented person’s lawyer or is authorized by law or court order to communicate directly with the other represented person about the subject of the representation, such communication is prohibited.” Id.

The “Anti-Contact” Rule

Louisiana Rule of Professional Conduct 4.2(a) provides that “[u]nless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order, a lawyer in representing a client shall not communicate about the subject of the representation with: (a) a person the lawyer knows to be represented by another lawyer in the matter.” See La. Rules of Prof’l Conduct r. 4.2(a). This “anti-contact” rule prohibits a lawyer from communicating with represented persons without authority either from the law, the court, or the represented person’s lawyer. See generally Restatement (Third) of the Law Governing Lawyers §§ 99-102 (2000). The rule exists to protect third parties and to safeguard the attorney-client relationship from unexpected and unwarranted intrusions. See, e.g., ABA Comm. on Ethics & Prof’l Responsibility, Formal Op. 95-396 (1995); see also In re Nguyen, 215 So. 3d 668, 669 (La. 2017) (sanctioning lawyer for communicating with a criminal defendant without permission of the defendant’s lawyer); In re Blanche, 44 So. 3d 263, 267-70 (La. 2010) (disciplining lawyer for adversely affecting a former client’s current representation by preparing and sending an amended bankruptcy plan to the former client without consent from the former client’s current lawyer); In re Frank, No. 06-04, 2006 WL 1133871, at *1 (W.D. La. Apr. 25, 2006) (stating that a lawyer “cannot evade the requirement of obtaining the consent of counsel by closing his eyes to the obvious,” where the lawyer communicated with a client’s criminal co-defendants and claimed ignorance to whether the co-defendants were represented by counsel).

ABA Formal Opinion 502: The Majority Opinion

On September 28, 2022, the American Bar Association Standing Committee on Ethics and Professional Responsibility published Formal Opinion 502 addressing whether a pro se lawyer may communicate with a person represented by counsel. See ABA Comm. on Ethics & Prof’l Responsibility, Formal. Op 502 (Sept. 28, 2022). The Committee opined that “unless the pro se lawyer has the consent of the represented person’s lawyer or is authorized by law or court order to communicate directly with the other represented person about the subject of the representation, such communication is prohibited. In this context, if direct pro se lawyer-to-represented person communication about the subject of the representation is desired, the pro se lawyer and counsel for the represented person should reach advance agreement on the permissibility and scope of any direct communications.” See ABA Comm. on Ethics & Prof’l Responsibility, Formal. Op 502 at 1.

The Committee noted that the “anti-contact” rule generally does not prohibit parties from communicating directly with one another. See ABA Formal Op. 502, at 2-3, citing ABA Model Rule 4.2, cmt. 4. Nevertheless, a majority of the Committee concluded that a lawyer proceeding pro se is actually “representing a client,” specifically himself or herself, and that the “no contact” rule applies:

When a lawyer is self-representing, i.e., pro se, that lawyer may wish to communicate directly with another represented person about the subject of the representation and may believe that, because they are not representing another in the matter, the prohibition of Model Rule 4.2 does not apply. In fact, both the language of the Rule and its established purposes support the conclusion that the Rule applies to a pro se lawyer because pro se individuals represent themselves and lawyers are no exception to this principle.

ABA Comm. on Ethics & Prof’l Responsibility, Formal. Op 502 at 1.

The majority did acknowledge that others may take issue with its application of Rule 4.2 to lawyers proceeding pro se. See id. at 2-3 (“when a lawyer is acting pro se, application of Model Rule 4.2 is less straightforward” and that as “to pro se lawyers, the scope of the rule is less clear.”). Further, the majority noted that its application of Rule 4.2 was contrary to the position of the Restatement of the Law Governing Lawyers. Id. at 5 and 4, n. 25. Finally, a majority of the Committee recognized that the text of the rule “may be seen as creating an ambiguity as applied to lawyers representing themselves.” Id.

ABA Formal Opinion 502: The Dissent

A faction of the Committee dissented. The dissenters opined that “[w]hile the purpose of the rule would clearly be served by extending it to self-represented lawyers, its language clearly prohibits such application.” See id. at 7. The dissenters recognized that “applying Rule 4.2 to pro se lawyers is supported by compelling policy arguments,” see id., but that “self-representation is simply not ‘representing a client,’ nor will an average or even sophisticated reader of these words equate the two situations.” Id. at 7. For this reason, the dissenters argued that the text of the rule does not support the Committee’s opinion.

Other Jurisdictions

State courts and state advisory opinions have also addressed this issue. Some of these cases and opinions have concluded that “that a lawyer acting in a pro se capacity may not communicate directly with a represented adversary or other represented person about the subject of the representation without the consent of that person’s lawyer, unless the communication is authorized by law or court order.” See ABA Comm. on Ethics & Prof’l Responsibility, Formal. Op 502 at 4.¹ The state of Oregon has amended its Rules of Professional Conduct to directly address this issue. See Or. Rules of Prof’l Conduct R. 4.2 (“In representing a client or the lawyer’s own interests, a lawyer shall not communicate or cause another to communicate on the subject of the representation with a person the lawyer knows to be represented by a lawyer on that subject…”).

Application to Louisiana Lawyers

In my view, the conclusion reached by the majority in Formal Opinion 502 is wrong. I hold this opinion because of the plain language of Rule 4.2 applies only when the lawyer is “representing a client.” The text of the rule simply does not support the conclusion that a pro se lawyer is “representing” himself.² A lawyer cannot represent himself; rather, a lawyer is himself. Basic agency principals make it clear that to “represent” someone, there must be “another person.” See La. Civ. Code art. 2985 (“A person may represent another person in legal relations as provided by law or by juridical act. This is called representation.”) (emphasis added); see also Restatement (Third) of the Law Governing Lawyers §1.01 (“Agency is the fiduciary relationship that arises when one person (a “principal”) manifests assent to another person (an “agent”) that the agent shall act on the principal’s behalf and subject to the principal’s control, and the agent manifests assent or otherwise consents so to act.”) When the agent and the principle are one and the same, there can be no “representation.”

Conclusion

In conclusion, it is my opinion that the Louisiana Rules of Professional Conduct do not prohibit a lawyer handling his own legal matter from contacting his opponent even though the opponent is independently represented. Although some courts and advisory opinions have concluded otherwise, these opinions nullify plain language through interpretation and improperly prioritize policy over the plain language of Rule 4.2.