In Minnesota, does the no-contact rule (Rule 4.2) apply to a lawyer who is representing themselves and wants to contact a represented opposing party?

Plain-English summary

The opinion responds to ABA Formal Opinion 502 (September 28, 2022), which read Model Rule 4.2 to cover a lawyer who is representing themselves, treating the pro se lawyer as representing "a client" and therefore subject to the no-contact rule. The opinion observes that ABA 502 is "unusual in that it contains a dissent," because the majority's expansion was made "without regard to the important operative language of 'In representing a client.'"

The Board sets out Minnesota Rule 4.2, which provides that "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 consent of the other lawyer or is authorized to do so by law or court order." The opinion notes the longstanding purposes of the rule: preventing overreach with less sophisticated parties, interfering with other lawyers' relationships with their clients, and eliciting uncounseled disclosures.

The Board agrees with the ABA 502 dissent, which it finds persuasive. Its reasoning is textual: both Model Rule 4.2 and Minnesota Rule 4.2 are "premised on the antecedent language of 'In representing a client,'" and "the pro se attorney is simply not representing a client as the term 'client' is typically understood." The opinion quotes Black's Law Dictionary's definition of "client" (a person who employs or retains an attorney) and notes that the Minnesota Rules do not otherwise define the term. On that basis the Board adopts the dissent's position "to eliminate any ambiguity in the meaning of Minnesota Rule of Professional Conduct 4.2."

In practice

Under this opinion, the question whether Minnesota Rule 4.2 reaches a self-represented lawyer turns on the rule's opening clause, "In representing a client." The Board concludes that a lawyer appearing pro se does not satisfy that predicate, and it declines to follow ABA Formal Opinion 502's contrary reading. The opinion frames its holding as a clarification of Minnesota Rule 4.2's meaning rather than a change to the rule.

Common questions

Q: Does ABA Formal Opinion 502 govern Minnesota lawyers?

A: No. The opinion adopts the position of the ABA 502 dissent rather than the majority, declining to extend Rule 4.2 to pro se lawyers on the majority's reasoning.

Q: Why does the Board conclude Rule 4.2 does not reach a pro se lawyer?

A: Because the rule begins "In representing a client," and the Board reasons that a lawyer who represents themselves is "simply not representing a client as the term 'client' is typically understood."

Q: What purposes does the Board say Rule 4.2 serves?

A: The opinion identifies eliminating improper overreach with less sophisticated parties, avoiding interference with other lawyers' relationships with their clients, and preventing the eliciting of uncounseled disclosures of protected information.

Background and rules framework

The opinion interprets Minnesota Rule of Professional Conduct 4.2 (the analog of Model Rule 4.2), the "no-contact" rule barring a lawyer, "In representing a client," from communicating about the subject of the representation with a person the lawyer knows to be represented by another lawyer, absent that lawyer's consent or legal authorization. The opinion's analysis centers on the rule's opening predicate and on the meaning of "client," which the Minnesota Rules do not define; the Board fills that gap with the ordinary dictionary meaning. The opinion is framed as a direct response to ABA Formal Opinion 502, adopting that opinion's dissent.

Citations and references

Rules of Professional Conduct:

• MR 4.2 (communication with person represented by counsel)
• Minnesota RPC 4.2 (Minnesota's no-contact rule, "In representing a client")

Other references:

• Black's Law Dictionary, 5th ed. (West Publishing, 1979) (definition of "client")

Other opinions cited:

• ABA Formal Opinion 502 (Sept. 28, 2022): communication with a represented person by a pro se lawyer (the Board adopts this opinion's dissent)

See also

• ABA Ethics Op. 502: Communication With a Represented Person by a Pro Se Lawyer
• DC Bar Ethics Op. 258: Rule 4.2 and Lawyers Proceeding Pro Se
• CA Bar Ethics Op. 1989-110: Lawyer-Trustee Communicating With Represented Parties

Source

• Landing page: https://lprb.mncourts.gov/lawyers-professional-responsibility-board-opinions/
• Original PDF: https://lprb.mncourts.gov/wp-content/uploads/2024/10/Opinion-25_compressed.pdf

Original opinion text

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

LAWYERS PROFESSIONAL RESPONSIBILITY BOARD
OPINION 25: IN RE AMERICAN BAR ASSOCIATION FORMAL OPINION 502 REGARDING COMMUNICATION WITH A REPRESENTED PERSON BY A PRO SE LAWYER

On September 28, 2022, the American Bar Association issued its formal opinion 502. This new ABA Opinion 502 significantly expands the scope of ABA Model Rule 4.2 by asserting that the pro se lawyer does represent "a client". This opinion is unusual in that it contains a dissent since this expansion of ABA Model Rule 4.2 was made with without regard to the important operative language of "In representing a client…" The instant Opinion adopts the position of the dissent in ABA Opinion 502 in order to eliminate any ambiguity in the meaning of Minnesota Rule of Professional Conduct 4.2 (MRPC 4.2)

MRPC 4.2 is a long-established a "no-contact" rule of ethics that strictly prohibits Minnesota lawyers from contacting represented clients on any extant legal issue in which those clients have retained legal representation.

More specifically, MRPC 4.2 provides that "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 consent of the other lawyer or is authorized to do so by law or court order."

[Footnote 1: The full ABA Opinion 502 is found at: https://www.americanbar.org/news/abanews/aba-news-archives/2022/09/aba-formal-opinion-502]

MRPC 4.2 has long served the overriding, critical interests of eliminating improper overreach with less sophisticated clients, interfering in other lawyers' relationships with their clients, and from eliciting uncounseled disclosure of protected information.

ABA Opinion 502 provides that pro se lawyers are now also subject to the Rule 4.2, notwithstanding the fact that the pro se attorney is not representing an actual third-party client as directly contemplated by Model Rule 4.2. In expanding the reach of 4.2 to pro se attorneys ABA Opinion 502 recites the same policy rationale underlying the original ABA Model Rule 4.2: eliminating overreach, interfering with another attorney's relationship with his or her client, and eliciting uncounseled disclosures.

The dissent in ABA Opinion in no way disputes these important, common-sense policy prerogatives that promulgate the proper functioning of Minnesota's legal system. Indeed, as a general matter, the Minnesota Rules of Professional Conduct have traditionally hewed closed to the carefully developed ABA Model Rules. However, in this instance, the LPRB believes the dissent in ABA Opinion 502 is persuasive.

The LPRB agrees with the dissent because both ABA Model Rule 4.2 and MRPC 4.2 are premised on the antecedent language of "In representing a client,…" As the dissent succinctly asserts, the pro se attorney is simply not representing a client as the term "client" is typically understood.

As a practical matter and under common understanding, a "client" is typically known as "a person who employs or retains an attorney, or counsellor, to appear for him [her] in courts, advise, assist, and defend him in legal proceedings, as to act for him in any legal proceedings, and to act for him in any legal business. It should include one who disclosed confidential matters to attorney while seeking professional aid, whether the attorney was hired or not." [Footnote 2: Black's Law Dictionary, 5th Ed. (West Publishing, 1979). The MRPC does not otherwise define "client."]

Dated: July 28, 2023

/s/ Benjamin J. Butler
BENJAMIN J. BUTLER
CHAIR, LAWYERS PROFESSIONAL RESPONSIBILITY BOARD