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By Samson Habte
Nov. 30 — An attorney dealing with someone who appears to be handling a matter pro se should not communicate directly with that person if there are indications the individual has received legal assistance in the matter on a limited-scope basis, the ABA's ethics committee advised Nov. 30.
The opinion grapples with an ethical dilemma lawyers face when dealing with pro se opponents who may have received “unbundled” legal assistance on one or more aspects of a dispute or transaction.
The opinion notes that it is often unclear whether a lawyer's communications with an ostensibly pro se party who may be partially represented are governed by Model Rule 4.2, which forbids direct contact with represented persons, or Model Rule 4.3, which generally permits communication with unrepresented persons.
The committee said an attorney in this scenario faces a quandary: “May the lawyer assume that such persons are proceeding without the aid of counsel and, therefore, speak directly to them about the matter under Model Rule 4.3, or should the lawyer first ask whether they are represented in the matter and then proceed accordingly under either Rule 4.2 or 4.3?”
Rule 4.2 requires lawyers to obtain the consent of opposing counsel or legal authorization before communicating with a person the lawyer “knows” to be represented in a matter.
The committee noted that “while the black letter of Model Rule 4.2 does not include a duty to ask whether a person is represented by counsel,” a lawyer's “knowledge that the person has obtained some degree of legal representation may be inferred from the facts.”
Accordingly, the committee recommended that lawyers inquire whether an ostensibly pro se party is in fact represented by counsel when there are indications the person has received some form of legal advice in the matter.
Lawyers must be attuned to clues that suggest a purportedly pro se party has received legal help, the committee said. Such clues, it said, include when the person produces a litigation pleading or a transactional document “that appears to have been prepared by a lawyer.”
The committee also warned that lawyers who breach Rule 4.2 by directly communicating with a person about matters for which that person has received counsel face serious potential consequences. These include “potential disciplinary complaints, motions to disqualify, motions to exclude testimony, and monetary sanctions, all of which could impede a client's matter,” it said.
According to the opinion, if a pro se individual indicates that she is receiving limited-scope assistance, Rule 4.2 prohibits direct communications about any “issue, decision, or action” for which the person is represented.
“On aspects of the matter for which representation has been completed and the lawyer providing limited-scope services is not expected to reemerge to represent the client, a lawyer may communicate directly with the other person,” as those discussions would be covered by Rule 4.3, the committee said.
The committee acknowledged, however, that a lawyer may not be able to get enough details out of a pro se party to make a determination whether Rule 4.2 or Rule 4.3 applies. In that scenario, it said, “the lawyer should contact opposing counsel to determine the issues on which the inquiring lawyer may not communicate directly with the client receiving limited-scope services.”
The opinion focuses largely on the duties of lawyers who deal with people who have received limited-scope representation.
However, it also includes a recommendation for lawyers who provide unbundled services: memorialize limitations on the scope of the representation.
“[A]lthough not required by Rule 1.2(c), the Committee recommends that when lawyers provide limited-scope representation to a client, they confirm with the client the scope of the representation—including the tasks the lawyer will perform and not perform—in writing that the client can read, understand, and refer to later,” the opinion states.
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As ABA Formal Op. 472 indicates, neither Model Rule 4.2 nor Model Rule 4.3 provides black-letter guidance on whether a lawyer may directly communicate with a client's pro se opponent who may have received some form of limited-scope services from an attorney.
But an August 2014 white paper from the ABA Standing Committee on the Delivery of Legal Services indicates that at least 13 states “have amended their counterpart rules, giving direction to lawyers who oppose self-represented litigants in court.”
According to the committee's survey, nine of these jurisdictions—Alaska, Colorado, Florida, Iowa, Maine, Missouri, New Hampshire, Utah and Washington—“[a]llow counsel to presume the opposing party is unrepresented (and thus allow counsel to communicate with the opposing party) unless the lawyer for the otherwise self-represented party informs counsel otherwise.”
In addition, three of them—Florida, Utah and Washington—also “[a]llow counsel to presume the opposing party is unrepresented (and prohibit opposing counsel from giving the opposing party advice) unless the lawyer for the otherwise self-represented party informs opposing counsel in writing.”
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