Lawyers are the only persons in whom ignorance of the law is not punished.
-Jeremy Bentham-
The ABA recently issued a formal ethics opinion (Formal Opinion 502) which I discussed briefly during an ethics presentation given for the Memphis Bar Association’s bankruptcy section. The gist of the opinion is that lawyers who represent themselves in litigation are prohibited from having direct communication with other represented parties without consent of their lawyer(s). This interpretation of RPC 4.2 cuts against the actual language in the rule and, especially, Comment 4, which states with the utmost clarity that “[p]arties to a matter may communicate directly with each other, and a lawyer is not prohibited from advising a client concerning a communication that the client is legally entitled to make.” Since the opinion makes a pro se lawyer both lawyer and client, I suppose that means that the lawyer can’t even think out loud about any conversation he might want to have with a represented party without violating the rule.
Absurd I say . . . and so does Mark Armitage and Robinjit Eagleson who published a dissent to the opinion. Mr. Armitage serves as Executive Director/General Counsel of Michigan’s Attorney Discipline Board and Ms. Eagleson serves as Ethics Counsel at the State Bar of Michigan. If any should know the confusion set forth by this opinion, it is they. The dissent essentially makes the point that you should say what you mean and mean what you say; and if the words in the rule don’t fit what you want, change the wording. That is exactly what Oregon did by changing the opening language of its version of RPC 4.2 to state, “In representing a client or the lawyer’s own interests (emphasis added). . .” Instead, the majority opinion has reached an inapposite conclusion by suggesting that the text of the rule and its comments should be disregarded and that policy dictates that lawyers should not be having conversations with represented parties without consent of their lawyers because . . . well . . . they will do dastardly things to take advantage of the situation. Lawyers representing themselves in a divorce would then need permission from opposing counsel before attempting to reconcile with their spouse. Ai Yi Yi!!
Returning to my ethics presentation, I voiced my concerns with the opinion and a colleague questioned whether the pro se lawyer could just retain counsel to put himself back in the position solely as the client. I thought about that for a minute and it seemed that the opinion failed to even address that possibility. So, people . . . can a represented lawyer have a direct communication with another represented party without the consent of their lawyer? Even under the confusion of the recent ABA opinion, one would think they could . . . or not. I guess it really depends on whether the words in a particular Rule of Professional Conduct mean anything or not. I’m glad I could clear all this up with you. Now, going forward, be sure to follow the rules or you could be in for a rude awakening.