I’ve written in this space in the past before about how there are many ethics rules that limit their application to lawyers such that they do not kick in unless a lawyer is representing a client.
Perhaps, most prominently, this point has been dwelt upon when talking about the efforts to convince jurisdictions to enact a version of ABA Model Rule 8.4(g) because prohibitions on harassment and discrimination by lawyers otherwise imposed in jurisdictions under Comment language to RPC 8.4(d) about “conduct prejudicial to the administration of justice” are limited to when an attorney is acting as a lawyer for a client. (Of course, those who pay particular attention to the ethics rules know that situation is itself convoluted given that the actual language of the rule does not limit itself to applying only when a lawyer is representing a client, but, whatever.)
Now, there are a few of these rules in which legitimate questions can be raised about whether they should apply to a lawyer who is representing themselves in something – for example, if litigation, acting as a pro se litigant. For some rules, it isn’t impossible to make a good faith argument that the rule might not apply to a lawyer if the only client they have is themselves. For example, Model Rule 4.2 which prevents a lawyer from communicating with a person who is represented by counsel about the matter in which they are represented. Traditionally, parties have every right to cut their counsel out of conversations (whether it is wise or not) and communicate directly with each other. If a lawyer is pro se in their own case, one can argue that they are being unfairly limited from doing what any other litigant could do if they could not communicate directly with the opposing party. Yet, given the purpose behind Rule 4.2 — to protect people who are not lawyers from being importuned by a lawyer outside the presence of their own lawyer – the better side of the argument is that Rule 4.2 applies to a lawyer representing themselves just as it would in a normal situation.
Model Rule 4.4, however, doesn’t seem to be a rule for which there would be much of a colorable argument for it not applying to a lawyer simply because they are litigating their own case pro se.
In the past two weeks, there has been a disciplinary decision out of Illinois confirming this view and recommending that a lawyer be suspended for three years for violating Illinois RPC 4.4 in their time as a pro se litigant.
For context and a bit of a reminder, RPC 4.4(a) is the rule that a lawyer “in representing a client” from “us[ing] means that have no substantial purpose other than to embarrass, delay, or burden a third person.” [Coincidentally, this is a rule that can be used rather than RPC 8.4(d) to get to a lot of toxic harassment and discriminatory conduct by lawyers when they are representing a client.]
The Illinois lawyer in question was litigating two separate matters as pro se plaintiff and, according to the opinion, repeatedly insulted, disparaged, and threatened opposing counsel. At the time of the events, the lawyer had been practicing law for more than 30 years. Based on the names involved, and the language used, there appears to have likely been at least an undercurrent of perceived anti-Semitism going on in the nature of the disparagements in one of the cases as well.
You can read the full opinion with all of the various emails here, but just a few examples should be sufficient for our purposes.
In the first litigation matter, after issuing a subpoena to a third-party bank, and after opposing counsel took the position that the subpoena was premature because the parties had not yet had a discovery conference, the lawyer sent an email on Easter Sunday morning to opposing counsel that said:
Happy Easter, Schmatlz [sic] you are being referred to the FBI today. You are insane to have done this, clear attempted obstruction.
Maybe you should watch the news, obstruction is a big topic. I will also motion this up for her Honor to weigh in re [sic] protective order.
What country do you live in? Here, a subpoena is inviolate and you violated the authority of the Court. You sir are despicable and unfit to practice law and I pledge to bring the full weight of Justice down on you.
There were several more similar, but escalating emails, all sent on the same day and that started to copy prosecutors as well.
In the second matter, the lawyer had filed a lawsuit in federal court against a storage facility. After he was made the subject of a motion for sanctions, he began sending multiple emails that threatened discipline against the opposing counsel, threatened RICO actions, caused at least one of the lawyers on the other side to fear for her safety, and was rife with a variety of attacks and accusations. Ironically, they also included implications that the lawyers on the other side were somehow violating the ethics rules by communicating with him directly.
Now, I have no real idea whether a three-year suspension as recommended is too harsh or just right, but several other aspects of the proceedings unsurprisingly would have played a role in that outcome. First, not shocking in the least given that the underlying cases were ones where the lawyer acted pro se, the lawyer represented himself in the disciplinary proceedings. Almost always the wrong call. Second, as should be obvious from the context of this post, the lawyer tried to argue that RPC 4.4(a) didn’t apply to him as a pro se party. (As to one of the two matters, it certainly wasn’t helpful that the lawyer was also representing his son in the same lawsuit.) Third, during the disciplinary proceeding, the lawyer took the Fifth Amendment rather than testify. While disciplinary proceedings are often spoken of as being “quasi-criminal,” the “quasi” part goes a long way in making it problematic for a lawyer to take the Fifth in a disciplinary case as that invariably is held against them.