Ezel / Ethics Opinions / ABA
ABA 2015-11-30

When I deal with a pro se opposing party who may have gotten limited-scope help from a lawyer, can I communicate with them directly?

Short answer: The opinion recommends asking whether the person is or was represented for any part of the matter. If the person is represented on the issue, Rule 4.2 requires going through counsel; on aspects for which no representation exists or it has concluded, Rule 4.3 allows direct communication. Lawyers providing limited-scope services are advised to confirm the scope in writing.
Currency note: this opinion is from 2015
Subsequent statutory amendments, court decisions, or later opinions or rule amendments may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.
Disclaimer: Advisory only. Not binding precedent.
About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official ethics opinion. The original opinion (linked at the bottom of this page, or PDF in the sidebar) is the authoritative source for any reliance.
View original ethics opinion (PDF)

ABA Formal Opinion 472: Communicating With a Person Receiving Limited-Scope Services

Short answer: The opinion concludes that when a lawyer has reason to believe an apparently pro se opposing person has received limited-scope legal services, the lawyer should begin by asking whether the person is or was represented for any part of the matter; the lawyer must comply with Rule 4.2 (go through counsel) on issues for which the person is represented, may communicate directly under Rule 4.3 on aspects with no representation or where it has concluded, and lawyers providing limited-scope services are advised to confirm the scope in writing.

Disclaimer: This is an advisory ethics opinion. Advisory opinions are not binding; they interpret the American Bar Association's Model Rules of Professional Conduct and are persuasive authority. This summary is for research purposes only and is not legal advice. Verify current rules before acting on any specific guidance.

About this page: The plain-English summary and Q&A below were written by Ezel based on the official opinion. We do not reproduce the opinion text on this page; follow the linked source for the official text, which controls.

Plain-English summary

The opinion addresses the situation created by limited-scope representation, sometimes called "unbundling," in which a lawyer performs only specific tasks (for example, drafting a pleading for a client who otherwise appears pro se). A lawyer on the other side often cannot tell whether such a person is wholly unrepresented, in which case Rule 4.3 (dealing with an unrepresented person) governs, or represented on the matter, in which case Rule 4.2's no-contact rule governs.

The opinion explains that Rule 4.2 does not, by its black letter, impose a duty to ask whether a person is represented, and that requiring such an inquiry in every case would "unnecessarily complicate perfectly routine fact-finding." But it reiterates Comment [8]'s warning that a lawyer "cannot evade the requirement of obtaining the consent of counsel ... by 'closing eyes to the obvious'": knowledge of representation may be inferred from circumstances, such as a pro se party filing a pleading or presenting a counteroffer that appears to have been prepared by a lawyer. In those circumstances the opinion recommends that the lawyer begin the communication by asking whether the person is or was represented by counsel for any portion of the matter, so the lawyer knows whether to proceed under Rule 4.2 or 4.3, noting this is not itself a violation of the Rules.

The opinion then maps the duties. When the communication concerns an issue, decision, or action for which the person is represented, the lawyer must comply with Rule 4.2 and deal with the person's counsel. The lawyer may communicate directly under Rule 4.3 on aspects for which no representation exists, and on aspects for which limited-scope representation has concluded and the limited-scope lawyer is not expected to reemerge. It cautions that Rule 1.6 confidentiality does not end when the limited representation concludes, so communications about a concluded matter should not probe the protected communications between the person and the limited-scope lawyer. Separately, the opinion recommends (though Rule 1.2(c) does not require it) that lawyers providing limited-scope services confirm the scope in writing the client can read and refer to later, consistent with Rule 1.5(b), and notes that some states require such a writing.

In practice

Under this opinion, a lawyer who has reason to believe an opposing pro se person received limited-scope help should open by asking whether and for what the person is represented. The opinion concludes the lawyer must route communications about represented issues through counsel under Rule 4.2, may deal directly under Rule 4.3 on unrepresented or concluded aspects, and should not inquire into protected communications with the limited-scope lawyer. For lawyers delivering limited-scope services, the opinion recommends confirming the scope in writing and reviewing state rules that may require it.

Common questions

Q: Do I have to ask every pro se person whether they have a lawyer?

A: No. The opinion concludes Rule 4.2 imposes no general duty to ask, but when circumstances suggest the person received limited-scope help, it recommends asking so the lawyer knows whether to proceed under Rule 4.2 or 4.3.

Q: The other side filed something that looks lawyer-drafted. Can I just call them?

A: The opinion advises caution. It treats lawyer-drafted pleadings or counteroffers from an apparent pro se party as circumstances from which representation may be inferred, and recommends asking about representation before communicating, to avoid "closing eyes to the obvious."

Q: If their limited-scope lawyer is done, can I deal with the person directly?

A: Yes, on those aspects. The opinion concludes that where representation has concluded and the limited-scope lawyer is not expected to reemerge, the lawyer may communicate directly, but should not inquire into the person's protected communications with that lawyer.

Q: I provide unbundled services. Do I have to put the scope in writing?

A: Not under Rule 1.2(c), but it is recommended. The opinion recommends confirming the scope in writing consistent with Rule 1.5(b), and notes some states require a written limited-scope agreement.

Background and rules framework

The opinion interprets Model Rule 1.2(c) (limiting the scope of representation with the client's informed consent), Rule 4.2 (communication with a represented person, including Comments [3], [4], and [8]), and Rule 4.3 (dealing with an unrepresented person), and references Rule 1.5(b) (communicating the scope and fee basis) and Rule 1.6 (confidentiality surviving the representation). It builds on ABA Formal Opinions 95-396 and 07-446 and surveys state opinions on limited-scope practice.

Citations and references

Rules of Professional Conduct:

  • ABA Model Rule 1.2(c) (scope of representation)
  • ABA Model Rule 4.2 (communication with represented persons), Comments [3], [4], [8]
  • ABA Model Rule 4.3 (dealing with unrepresented persons)
  • ABA Model Rule 1.5(b) (communicating scope and fee basis)
  • ABA Model Rule 1.6 (confidentiality)

Cases:

  • Weeks v. Independent School District No. I-89, 230 F.3d 1201 (10th Cir. 2000), disqualification for Rule 4.2 violation
  • Oklahoma Bar Ass'n v. Harper, 995 P.2d 1143 (Okla. 2000), actual-knowledge requirement under Rule 4.2

Other opinions cited:

  • ABA Formal Op. 95-396 (1995): no general duty to inquire under the no-contact rule
  • ABA Formal Op. 07-446 (2007): undisclosed assistance to pro se litigants
  • Colorado Bar Op. 101; D.C. Bar Op. 330 (2005): explaining limited-scope limitations in writing

See also

Source