Can a lawyer communicate directly with a party who is litigating pro se but is represented by counsel only in a related matter?

Plain-English summary

A lawyer had sued an individual over a credit card debt. After service, the lawyer received a response from an attorney retained by the defendant alleging collection violations, followed by a pro se answer from the defendant in the debt suit. When asked, the defendant's attorney said the representation was limited to the collection-violations matter and did not extend to the debt lawsuit, which the defendant could not afford to hire counsel for. The inquiring lawyer asked with whom communications had to be made.

The committee turned to Rule 4-4.2, which bars a lawyer from communicating about the subject of a representation with a person the lawyer knows to be represented by another lawyer in that matter, absent the other lawyer's consent, and the rule's comment, which states the rule does not prohibit communication with a party about matters outside the representation. Applying that framework, the committee concluded that, because the defendant's attorney represented him only in the collection-violations matter and not in the debt litigation, the inquiring lawyer could communicate directly with the defendant about the litigation, but had to limit those communications to the litigation and could not discuss anything outside the lawsuit.

The committee added that the lawyer should notify opposing counsel of the intent to deal directly with the defendant on the litigation only, while limiting all communications about the collection-violations matter to opposing counsel, and might consider copying opposing counsel on correspondence to the defendant about the litigation so there is no question about the communications made.

Currency note

This opinion was issued in 1995, before The Florida Bar's adoption of the 2006 revisions to the Rules of Professional Conduct. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Can a lawyer contact a pro se party who has a lawyer only in a related matter?

A: Under this opinion, yes, about the litigation in which the party is unrepresented, but the communications must be limited to that litigation.

Q: What may the lawyer not discuss with the party directly?

A: Per the opinion, the subject of the matter the party's attorney handles; communications about that matter must go through opposing counsel absent consent (Rule 4-4.2).

Q: What practical step did the committee describe?

A: The committee said the lawyer should notify opposing counsel of the intent to deal directly with the defendant on the litigation only, and might copy opposing counsel on correspondence to the defendant about the litigation.

Background and rules framework

The opinion applied Rule 4-4.2 (communication with a person represented by counsel; Model Rule 4.2) and its comment, which permits communication with a party about matters outside the representation.

Citations and references

Rules of Professional Conduct:

• Model Rule 4.2 / Fla. Rule 4-4.2 (communication with a person represented by counsel)

See also

• FL Bar Ethics Op. 02-5: Second Opinion for a Represented Person
• FL Bar Ethics Op. 09-1: Communicating With a Represented Government Agency
• FL Bar Ethics Op. 07-3: Unilateral Communications With Prospective Clients

Source

• Landing page: https://www.floridabar.org/etopinions/etopinion-94-4/
• Original PDF: https://www-media.floridabar.org/uploads/2017/04/FL-Bar-Ethics-Op-94-4.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

FLORIDA BAR ETHICS OPINION
OPINION 94-4
April 30, 1995
Advisory ethics opinions are not binding.
Opposing counsel may communicate with an individual who is litigating pro se concerning that litigation even though an attorney is representing the individual in a related matter. Opposing counsel, however, may not communicate with the individual about the subject matter of the attorney's representation without the attorney's consent.
RPC: 4-4.2

A member of The Florida Bar has requested an advisory ethics opinion. The operative facts as presented in the inquiring attorney's letter are as follows. The inquiring attorney filed suit against an individual regarding a credit card debt. After serving the defendant, the attorney received a response from an attorney retained by the defendant alleging collection violations. Thereafter, the inquiring attorney received a pro se answer from the defendant. When questioned by the inquiring attorney as to the representation of the defendant, the defendant's attorney stated that the representation of the defendant was limited to the collection violations and that the attorney was not representing the defendant in the lawsuit because the defendant could not afford to hire the attorney for that purpose. The inquiring attorney has now asked with whom communications must or may be made, in light of the defendant's attorney's limited representation.

There is no formal answer to the inquirer's question as this question has never been addressed. However, Rule 4-4.2 of the Rules Regulating The Florida Bar may provide some guidance. This rule provides:

In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer. Notwithstanding the foregoing, an attorney may, without such prior consent, communicate with another's client in order to meet the requirements of any statute or contract requiring notice or service of process directly on an adverse party, in which event the communication shall be strictly restricted to that required by statute or contract, and a copy shall be provided to the adverse party's attorney.

The Comment to the rule states, in relevant part:

This rule does not prohibit communication with a party, or an employee or agent of a party, concerning matters outside the representation....

In accordance with the foregoing, an attorney representing a client may not ethically contact a represented person about the subject matter of the representation unless that person's attorney consents or unless a statute or contract requires the direct contact. Pursuant to the language of the Comment, however, direct communications with represented persons about matters outside the subject of the representation are permissible. Therefore, under the facts presented, because the opposing counsel is representing the defendant in the collection violations case only and not in the litigation suit, the inquiring attorney may communicate directly with the defendant regarding the litigation. The communications must be limited to the litigation; the attorney may not discuss anything with the defendant outside of the lawsuit. The attorney should notify the opposing counsel that the attorney intends to deal directly with the defendant on the litigation case only and that, regarding the collection violations case, the attorney will limit all communications to the opposing counsel. The attorney might consider copying the opposing counsel with the attorney's correspondence to the defendant regarding the litigation case, so that there is no question as to the communications made.