Ethics Question of the Month January 2023

Pro Se Can You See?

The Question

According to a recent Ethics Opinion, who violated Rule 4.02?

The Situation

Sam and Adriana are lawyers who live in separate homes in a new 15-unit townhouse development. They and the owners of the other 13 units all recently purchased their respective townhomes.

Shortly after moving in, each of the new owners discovered identical plumbing issues. Because the owners have a good relationship with the builder, several of them, including Adriana, have been working with the builder individually to try to address the problems. Sam has not participated in these discussions but keeps apprised of the situation by Adriana.

The best solution for fixing the problem proves to be more costly than expected. The builder delays, hoping to find less costly fixes. Adriana’s efforts to reach an agreement with the builder break down. In an effort to move settlement talks along, Adriana files a lawsuit against the builder for damages to her unit only.

Sam then files his own lawsuit, representing himself. The other owners ask Adriana and Sam to represent them as well. Sam is too busy to take on additional clients for this lawsuit, so Adriana agrees to represent the other 13 owners and add them as plaintiffs in her already-filed lawsuit. The builder’s attorney files a general denial in both pending lawsuits.

Sam and Adriana would prefer to reach a settlement rather than litigating, so they devise a new offer that they believe might be appealing to all sides. After her clients agree, Adriana conveys the offer directly to the builder. Sam also contacts the builder directly with the same offer on his own behalf.

Both Sam and Adriana quickly receive a letter from the builder’s attorney, accusing them of violating Rule 4.02 of the Texas Disciplinary Rules of Professional Conduct by contacting his client directly without permission when they know he is represented by counsel. According to a recent Ethics Opinion, who violated Rule 4.02?

The Question

According to a recent Ethics Opinion, who violated Rule 4.02?

The Correct Answer is B Of 191 Responses, 39% are correct.

  1. A 3
  2. B 75
  3. C 87
  4. D 26

The Explanation

Rule 4.02(a) of the Texas Disciplinary Rules of Professional Conduct states:

In representing a client, a lawyer shall not communicate or cause or encourage another to communicate about the subject of the representation with a person, organization or entity of government the lawyer knows to be represented by another lawyer regarding that subject, unless the lawyer has the consent of the other lawyer or is authorized by law to do so.

Every lawyer is aware of the prohibition on communicating directly with an opposing party represented by counsel, but what happens when the lawyer is also a litigant – who, as a litigant, does generally have the right communicate directly with opposing parties? The Professional Ethics Committee took up this issue in Ethics Opinion 653 (2016). The Opinion found that a lawyer/litigant does have the right to communicate directly with an opposing party in some circumstances:

In the opinion of the Committee, Rule 4.02(a) of the Texas Disciplinary Rules does not apply to a lawyer who is a party to a lawsuit or transaction but does not represent any other party in the matter. Thus the lawyer/party who does not represent any other party in the legal matter is not prohibited by Rule 4.02(a) from communicating directly with an adverse party in the matter without the consent of the adverse party’s lawyer. The Texas Disciplinary Rules of Professional Conduct are based in part on treating clients as separate persons with whom lawyers, also as separate persons, may establish representation relationships. In the opinion of the Committee, to say that, in applying Rule 4.02(a), a lawyer who is a party in a matter is to be viewed as part lawyer and part client with the lawyer part representing the client part in the matter is to strain the language of the Rule beyond its intended meaning.

The Committee did note, however, that a lawyer/litigant communicating with an opposing party should be aware that:

such communications will be subject to other requirements of the Texas Disciplinary Rules. Because of the risk that a lawyer’s direct communication with a party who is not a lawyer could in some cases be a means of misrepresentation or intimidation by the lawyer, a lawyer/party who chooses to communicate directly with another party without consent of that party’s lawyer must exercise particular care to avoid any communication with the adverse party that in the circumstances would constitute “conduct involving dishonesty, fraud, deceit or misrepresentation” in violation of Rule 8.04(a)(3)

Here, Sam represents only himself and is therefore not subject to Rule 4.02. By contrast, Adriana represents herself and 13 other plaintiffs and cannot claim the safe harbor of Ethics Opinion 653. The correct answer is B.

Bluebook Citation

Pro Se Can You See?: Ethics Question of the Month - January 2023, Texas Center for Legal Ethics (2023), from https://legalethicstexas.com/ethics-question-of-the-month/ethics-question-of-the-month-january-2023/ (last visited Feb 01, 2023)