If a lawyer is personally a party in a case, can the lawyer talk directly to the represented opposing party without going through that party's attorney?

Plain-English summary

Opinion 133 (originally adopted in 2017 and revised June 1, 2020) addresses a lawyer who is personally a party to a matter and wants to discuss it directly with the opposing party, without the opposing party's lawyer's consent. Colo. RPC 4.2 bars a lawyer, "in representing a client," from communicating about the subject of the representation with a person the lawyer knows to be represented by counsel, while Comment [4] confirms that "parties to a matter may communicate directly with each other." The Committee frames the entire analysis around a single distinction: is the lawyer-party "representing a client" in the matter? If yes, the black-letter prohibition applies; if no, Comment [4] permits direct party-to-party contact.

In the first scenario, the lawyer-party is not representing himself or herself. The opinion uses the Colorado client-lawyer-relationship test from People v. Bennett (a relationship arises when a client seeks and receives the lawyer's advice on the legal consequences of the client's actions, assessed subjectively) to decide whether the lawyer is acting as counsel. It notes the inquiry is usually simpler in litigation (a lawyer who files pleadings pro se is representing himself) than in transactions, where factors like firm letterhead, using legal training for leverage, and the complexity of the deal matter. A sub-case is the lawyer-party who is independently represented by counsel: although the Colorado Supreme Court has not decided the point and authority elsewhere is split (Pinsky permitted such contact; a Texas court in Vickery rejected that reasoning), the Committee concludes Rule 4.2 does not bar a represented lawyer-party from contacting the adverse party, because the rule's text applies only when "representing a client" and Comment [4] permits party-to-party communication without exempting parties who happen to be lawyers.

In the second scenario, the lawyer represents himself or herself pro se. Here the opinion concludes the lawyer violates Rule 4.2 by communicating directly with a represented adverse party about the subject of the matter without the other lawyer's consent or a court order. It draws on the OPDJ's decision in People v. Wollrab (noting the Colorado Supreme Court reversed on other grounds but the rule analysis remains instructive) and the three purposes of Rule 4.2 identified in ABA Formal Op. 95-396: protecting the represented person from overreaching, safeguarding the client-lawyer relationship, and reducing disclosure of harmful information. Even a self-represented lawyer, the opinion adds, may still communicate about matters outside the representation, may give notice the lawyer is contractually or legally authorized to give, and may seek a court order (including a prophylactic order at the start of a case, for example to handle routine childcare matters in a divorce).

In practice

Under this opinion, the operative line for a lawyer-party in Colorado is self-representation. The opinion holds that a lawyer proceeding pro se is "representing a client" for Rule 4.2 purposes and therefore may not contact the represented adverse party about the subject of the matter without the other lawyer's consent or a court order, while a lawyer-party who has retained counsel, or who is a party without representing anyone, falls outside the prohibition and may communicate directly under Comment [4]. The opinion treats the threshold question (is the lawyer representing a client) as fact-dependent under the Bennett test, especially in transactional settings, and it identifies the safe harbors that apply even to a self-represented lawyer: communications outside the representation, legally or contractually authorized notices, and court-authorized contact. Because Colo. RPC 4.2 is identical to the Model Rule and was applied as written here, the analysis tracks the rule as it stood at the time of the opinion.

Common questions

Q: I'm a lawyer and I'm a party in my own case. Can I call the other side directly?

A: Only if you are not representing yourself. The opinion concludes a lawyer appearing pro se is "representing a client" and is barred by Rule 4.2 from contacting the represented adverse party without consent or a court order; a lawyer-party who has hired counsel, or who is not representing anyone, may communicate directly under Comment [4].

Q: Why does hiring my own lawyer change the answer?

A: Because then you are acting only as a party. The opinion reasons that Rule 4.2's prohibition applies only when a lawyer is "representing a client," so a lawyer-party represented by counsel is not communicating while representing a client, and Comment [4]'s permission for parties to talk to each other applies without an exception for parties who are lawyers.

Q: I represent myself. Is there anything I can still say to the represented opposing party?

A: Yes, within limits. The opinion says even a self-represented lawyer may communicate about matters outside the representation, may give a notice the lawyer is contractually or legally authorized to give, and may seek a court order; it notes distinguishing "matters outside the representation" can be difficult, so it advises caution.

Q: How do I tell whether I'm "representing myself" in a transaction rather than litigation?

A: It is fact-specific under the Bennett test. The opinion lists factors such as whether the lawyer uses firm letterhead, uses legal training for leverage, and the complexity of the transaction (an ordinary car or home purchase looks different from a complex deal), and advises lawyers to evaluate whether they could reasonably be viewed as representing themselves.

Background and rules framework

The opinion interprets Colo. RPC 4.2 (communication with a person represented by counsel), which it states is identical to ABA Model Rule 4.2, together with its Comments [4] (party-to-party communication and authorized notices) and [6] (seeking a court order), and Comment [17] to the Preamble (substantive law determines whether a client-lawyer relationship exists). It applies the Colorado relationship test from People v. Bennett and the purposes of Rule 4.2 drawn from ABA Formal Op. 95-396, and surveys split authority from other jurisdictions on the independently represented lawyer-party.

Citations and references

Rules of Professional Conduct:

• Colo. RPC 4.2 / Model Rule 4.2 (communication with represented persons; Comments [4] and [6])
• Colo. RPC Preamble Comment [17] (substantive law determines existence of a client-lawyer relationship)

Cases:

• People v. Bennett, 810 P.2d 661 (Colo. 1991), test for a client-lawyer relationship
• People v. Wollrab, 16PDJ062 (Colo. O.P.D.J. 2017), rev'd on other grounds, 2018 CO 64, Rule 4.2 and the pro se lawyer
• People v. Crews, 901 P.2d 472 (Colo. 1995); HTC Corp. v. Tech. Properties Ltd., 715 F. Supp. 2d 968 (N.D. Cal. 2010)
• Pinsky v. Statewide Grievance Comm., 578 A.2d 1075 (Conn. 1990); Vickery v. Comm'n for Lawyer Discipline, 5 S.W.3d 241 (Tex. App. 1999)

Other opinions cited:

• ABA Formal Op. 95-396 (1995): communications with represented persons (three purposes of Rule 4.2)

See also

• ABA Formal Op. 502: Communication With a Represented Person by a Pro Se Lawyer
• ABA Formal Op. 95-396: Communications With Represented Persons

Source

• Landing page: https://www.cobar.org/ethicsopinions
• Original PDF: https://www.cobar.org/Portals/COBAR/Repository/ethicsOpinions/72020/FormalEthicsOpinion_133 R (final) (clean).pdf