“In representing a client” … again

We’ve trod this path before, but the issuance of the most recent ABA Formal Ethics Opinion justifies renewed discussion of the topic. Particularly when the opinion in question is of the rare variety where there is a dissent included in the opinion.

The path (our topic): Does Model Rule 4.2 apply to a lawyer when they are proceeding pro se? Formal Opinion 502 issued on September 28, 2022 says yes. Two members of the ABA Standing Committee on Ethics and Professional Responsibility dissent to say it “should,” but that its present language does not.

You can, of course, read the whole opinion if you’d like here.

But the crux of what you need to know is that the majority, taking comfort from a variety of disciplinary cases and ethics opinions from various U.S. jurisdictions, interprets the language “in representing a client” in Rule 4.2 to include a pro se lawyer because the lawyer is representing a client in that situation … with the client being themself. To justify that interpretation, the majority notes that a pro se litigant is someone who is representing themselves.

The majority also relies heavily on the purpose of Rule 4.2 … protecting regular people from the superpowers possessed by lawyers. Kidding, but only in part.

I use that hyperbolic phrase frequently when speaking at seminars, and I bet if I were not too lazy to search here in my blog that I’ve said it here as well. The purpose of Rule 4.2 is to prevent lawyers from overreaching and presumes that a lawyer who circumvents someone else’s lawyer will be able to convince that person to say something, or agree to something, that they would not if their counsel was present to manage the situation.

Thus, if that is the purpose, then it makes perfect sense to protect a represented person from a lawyer operating pro se.

On that point, even the dissent agrees. But the dissent makes the logical point that if the rule was actually intended to apply to that situation, then the language it uses “in representing a client” is about the worst language possible to communicate that result. Particularly when a comment to the rule also makes the point that the rule does not prohibit parties to litigation from talking party to party.

So, that’s where all that stands. And what happens next? Probably not a whole lot. The sky certainly won’t fall – many of us have thought this is how the rule would be interpreted. It doesn’t seem likely that the ABA will feel like it must propose any change to the language of the rule to conform to this result. And this outcome will prevent any arguments for interpreting other rules that use the same “in representing a client” language as not applying to pro se lawyers.

And yet, this outcome does create some problems because that same phrase “in representing a client” is used in other places in the rules and, as to those other places, the notion that such rules would apply to a pro se lawyer is something of a mixed bag. For example, it seems not really any problem to apply the prohibitions in Model Rule 4.1 and 4.4 to a lawyer proceeding pro se. Yet, it would make entirely no sense to prevent a pro se lawyer from signing a deal for the literary rights to their case while it is ongoing, but Model Rule 1.8(d) would appear to prohibit that unless the phrase “of representation of a client” is going to be interpreted differently than “in representing a client.”

As a lawyer who represents lawyers, this is, of course, a good outcome and not just because of any risk of lawyers misunderstanding the rule but because it removes one more reason a lawyer might think it advantageous to represent themselves. In fact, given how Model Rule 4.2 works, being represented by a lawyer in a matter would allow a lawyer to circumvent the restrictions in 4.2. In that situation, the lawyer truly is just a party and, thus, entitled to have party to party communications without violating that rule.