Does the no-contact rule apply to a lawyer who is representing himself and the opposing party has counsel?
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This page answers the general question as of 2003. Ezel answers yours: whether it's allowed on your facts, under the current Hawaii Rules of Professional Conduct, with citations.
Plain-English summary
The opinion addressed whether an attorney proceeding pro se is precluded by HRPC 4.2 (communication with a person represented by counsel) from communicating directly with a person represented by counsel.
The opinion concluded that a lawyer who is a party in a matter and is proceeding pro se cannot communicate directly about the subject of the representation with another person known to be represented by counsel in the matter, without first obtaining consent from the other person's lawyer or being authorized to do so by law or a court order.
In practice
Under this opinion, a Hawaii lawyer who represents himself or herself as a party does not escape HRPC 4.2 by appearing pro se; the opinion holds that such a lawyer must still get the consent of the represented person's counsel (or rely on authorization by law or court order) before communicating directly with that person about the subject of the matter.
Common questions
Q: Does the no-contact rule apply when a lawyer represents himself?
A: Yes. The opinion concluded that a lawyer who is a party proceeding pro se is bound by HRPC 4.2 and cannot communicate directly with a represented person about the subject of the matter.
Q: How can the pro se lawyer communicate with the represented party?
A: Per the opinion, the lawyer must first obtain consent from the other person's lawyer, or be authorized to communicate by law or a court order.
Background and rules framework
The opinion interprets HRPC 4.2, the rule barring a lawyer from communicating about the subject of a representation with a person the lawyer knows to be represented by another lawyer, absent that lawyer's consent or legal authorization. It corresponds to Model Rule 4.2.
Citations and references
Rules of Professional Conduct (Hawaii; cf. Model Rules):
- HRPC 4.2 (communication with a person represented by counsel) (cf. Model Rule 4.2)
See also
- ABA Ethics Op. 95-396: Communications With Represented Persons
- ABA Ethics Op. 92-362: Contact With Opposing Party in Settlement
Source
- Landing page: https://dbhawaii.org/legal-ethics-advice-for-hawaii-lawyers/
- Original PDF: https://dbhawaii.org/wp-content/uploads/FO_44_-_PRO_SE_COMMUNICATION.pdf
Original opinion text
Best-effort transcription from a scanned PDF. Minor errors may remain; the linked PDF is authoritative.
Office of Disciplinary Counsel
Supreme Court, State of Hawaii
1132 Bishop Street, Suite 300
Honolulu, Hawai'i 96813
Telephone (808) 521-4591
FORMAL OPINION NO. 44
(Pro Se Communication)
This Opinion addresses the issue of whether an attorney proceeding pro se is precluded by HRPC 4.2 (Communication with Person Represented by Counsel) from communicating directly with a person represented by counsel. A lawyer who is a party in a matter and is proceeding pro se cannot communicate directly about the subject of the representation with another person known to be represented by counsel in the matter without first obtaining consent from the other person's lawyer or is authorized to do so by law or a court order.
DATED: Honolulu, Hawai'i, April 24, 2003.
Carroll S. Taylor
Chairperson, Disciplinary Board
Carole R. Richelieu
Chief Disciplinary Counsel
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