So far this month, the Professional Ethics Committee for the State Bar of Texas has put out two ethics opinions worthy of some discussion given the issues tackled and the outcomes of each opinion.
The more recent of the two, Opinion No. 653, evaluates whether a lawyer acting pro se in a matter has to abide by Texas’s version of RPC 4.2 — the rule that restricts a lawyer when representing a client from communicating about a matter with a person the lawyer knows is represented by counsel. The committee laid out the question it would address as:
May a lawyer who is a party in a legal matter but who does not represent any other party in the matter communicate concerning the matter directly with a represented adverse party without the consent of the adverse party’s lawyer.
The Texas committee, while acknowledging that there is not universal agreement on the answer (even among Texas courts), concluded that its Rule 4.02 did not ethically prohibit a lawyer acting pro se from communicating directly with a represented adverse party. In reaching that conclusion, the Texas opinion aligns itself squarely on the issue with the Restatement (Third) of the Law Governing Lawyers § 99(1)(b).
Though reasonable minds can differ, I think the Texas committee’s effort to say that concluding otherwise would “strain the language of the Rule beyond its intended meaning” is more difficult to justify than its conclusion. A number of interesting follow-up questions for the Texas committee might make the point about the language of the rule. As an example, does a lawyer who, while proceeding pro se, uses a method of obtaining evidence that violates the other side’s legal rights violate Texas’s Rule 4.04(a). Or what about if the same lawyer uses means that have as the sole purposes embarrassing or burdening the other side? Both of those aspects of Texas Rule 4.04(a)’s prohibitions are premised upon the lawyer being engaged “[i]n representing a client.”
This kind of interpretation of a rule patterned upon ABA Model Rule 4.2 is also difficult to reconcile with what I have always understood to be the fundamental premise behind the prohibition — the notion that a lawyer as a skilled advocate trained in the art of persuasion would have the ability to take advantage of a nonlawyer and get them to agree to something or make some admission they would never make if skilled counsel on the other side was in the room. Almost a year ago, I wrote a little bit about a presentation I did on legal ethics to a room full of regular people and how one of the things they were most surprised to learn was that the lawyer ethics rules didn’t let grown up adults decided for themselves if they wanted to talk to the other side’s lawyer.
In Tennessee, as in most states that have an RPC 4.2 patterned after the ABA Model, we explain the purpose for this rule in Comment [1]:
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 uncounseled disclosure of information relating to the representation.
The other Texas opinion, Opinion No. 652, requires much less discussion because it actually — correctly — serves to undo what would be a controversial position if still embraced by the Texas committee. The two questions tackled in Opinion 652 are:
- May a lawyer use a collection agency to collect past due attorney’s fees without violating the Texas Disciplinary Rules of Professional Conduct?
- May a lawyer report nonpaying clients to a credit bureau without violating the Texas Disciplinary Rules of Professional Conduct?
Now, you may think the answers to these two questions ought to be straightforward (and I think you are right), and, in fact, the Texas committee offered what I view as the correct answer to both questions. 1. Yes. 2. No. But, remarkably, as a read of the full opinion will reveal, the Texas committee had to reverse itself on a prior opinion from more than 20 years ago, in order to answer the first question with a “yes.”