May a lawyer discuss litigation with the lawyer’s represented parents when their counsel does not consent and the lawyer seeks to intervene?

Short answer No. The opinion applies Rule 4-4.2 to the lawyer’s proposed communication about the litigation with the represented parents; the lawyer’s prospective role as a party does not remove that prohibition.

Bar

MOLEC

Issued

2011

Apply this to your situation

This page answers the general question as of 2011. Ask about yours and see what the current Missouri Rules of Professional Conduct say for your facts, with citations.

How much weight this carries: Under Missouri Supreme Court Rule 5.30, formal opinions are binding; informal opinions are advisory. Source.

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 on this page) is the authoritative source for any reliance.

Plain-English summary

The lawyer asked to discuss the parents’ litigation with them despite their counsel’s refusal to consent. The lawyer sought to intervene pro se, and further litigation about the matter was likely.

The opinion answers no. Under Rule 4-4.2, a lawyer representing a party may not communicate about the subject of the representation with someone the lawyer knows is represented by another lawyer, absent that lawyer’s consent or authorization by law or court order. The opinion says the prohibition also covers a lawyer involved in a matter as a party or a person with interests.

In practice

The opinion applies the represented-person contact restriction to the proposed discussion with the lawyer’s parents even though the lawyer seeks to intervene pro se.

Common questions

Q: Does the parents’ counsel’s refusal to consent matter?

A: Yes. The opinion answers no to contact under the stated facts and identifies counsel’s consent as one exception to Rule 4-4.2.

Q: Does seeking to intervene pro se remove the restriction?

A: No. The opinion says the prohibition applies to a lawyer involved as a party or person with interests.

Q: What other authorization does the opinion identify?

A: It identifies authorization by law or court order as an exception to Rule 4-4.2.

Background and rules framework

Rule 4-4.2 governs a lawyer’s communication about the subject of a representation with a person the lawyer knows to be represented by another lawyer. The opinion applies that rule to the lawyer’s stated family and litigation circumstances.

Citations and references

Missouri Rules of Professional Conduct:

Rule 4-4.2

Source

Landing page: https://mo-legal-ethics.org/informal-opinion/2011-03/

Original opinion text

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

Question: May Attorney communicate with Attorney’s parents about the parents’ litigation, where the parents’ counsel does not consent to the communication, Attorney is seeking to intervene in the matter pro se, and further litigation concerning the matter is likely in the future?

Answer: No. In representing a party, Rule 4–4.2 prevents a lawyer from communicating about the subject of the representation with a person the lawyer knows to be represented by another lawyer, unless the other lawyer consents or unless authorized to do so by law or court order. The rule’s prohibition applies to a lawyer who is involved in a matter as a party or a person with interests.

What do the rules say today, for your facts?

This opinion is from 2011. Ezel checks the current Missouri Rules of Professional Conduct against your situation and cites the rules it relies on.

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