Does RPC 4.2's no-contact rule bar a lawyer who is representing himself (pro se) from communicating directly with a represented opposing party?

Plain-English summary

Opinion 746 answers inquiries from the attorney ethics research assistance hotline about whether RPC 4.2, which bars a lawyer from communicating about a matter with a person the lawyer knows is represented by counsel, reaches a lawyer who is litigating on his own behalf. The Committee holds that RPC 4.2 does not apply to pro se lawyers.

The Committee frames a split. The ABA, in Formal Opinion 502 (September 28, 2022), read Model RPC 4.2 to apply to a lawyer acting pro se on the theory that "a pro se lawyer is representing a client," namely himself, and that direct contact carries the same risks of overreaching and uncounseled disclosure the rule guards against. The New Jersey Disciplinary Review Board, in In re Horowitz, DRB 19-468 (November 18, 2020), likewise found that a pro se lawyer violated RPC 4.2. The opposing view, taken by the Restatement (Third) of the Law Governing Lawyers, is that "[a] lawyer representing his or her own interests pro se may communicate with an opposing represented nonclient on the same basis as other principals," because the rule's opening phrase, "in representing a client," does not describe self-representation. A dissent to ABA Opinion 502 made the same textual point, urging that the rule be amended rather than stretched.

The Committee sides with the Restatement and the ABA dissent. It concludes that reading "in representing a client" to include a lawyer acting pro se "is a tortured and counterintuitive construction of the Rule," and that ethics rules "should not be traps for the unwary." RPC 4.2 therefore does not apply to a pro se lawyer. The Committee adds that other rules still govern: a pro se lawyer must treat adverse parties with courtesy, may not misrepresent fact or law, and must refrain from overreaching, citing RPC 3.2 and RPC 8.4(c) and (d), and lawyers should counsel their own clients not to communicate directly with an adverse pro se lawyer.

The Committee also flags an inconsistency it sees in the contrary position: under the ABA and DRB approach, a lawyer-party who is represented by counsel is not barred from speaking directly to the opposing party, while an unrepresented lawyer-party would be, even though the risk of overreaching is present either way.

In practice

The opinion holds that, in New Jersey, RPC 4.2 does not prohibit a lawyer who is proceeding pro se from communicating with a represented adverse party. Per the opinion, a pro se lawyer's conduct is instead measured against RPC 3.2 and RPC 8.4(c) and (d): the lawyer must be courteous, must not misrepresent facts or law, and must not overreach, disrupt the represented person's relationship with counsel, or seek uncounseled disclosures. The opinion also states that a lawyer representing a client should advise that client not to engage in direct communications with an adverse pro se lawyer.

This position diverges from ABA Formal Opinion 502 and from several other jurisdictions, and from the New Jersey DRB's own decision in Horowitz; the opinion treats the rule's text as controlling and recommends that any broader prohibition come from a rule amendment rather than from construction.

Common questions

Q: In New Jersey, can a lawyer who is representing himself contact the represented opposing party directly?

A: Yes, as far as RPC 4.2 is concerned. The Committee concludes that RPC 4.2 does not apply to a lawyer proceeding pro se, because the rule governs a lawyer "in representing a client" and self-representation is not representing a client.

Q: Does that mean a pro se lawyer can say anything to the other side?

A: No. The opinion states that other rules apply: RPC 3.2 and RPC 8.4(c) and (d) require the pro se lawyer to be courteous, to avoid misrepresenting facts or law, and to refrain from overreaching, disrupting the represented person's relationship with counsel, or seeking uncounseled disclosures.

Q: How does this square with ABA Formal Opinion 502?

A: It does not. ABA Opinion 502 read Model Rule 4.2 to reach pro se lawyers because a pro se lawyer "represents a client" (himself). The Committee adopts the contrary view of the Restatement and the ABA dissent, finding that reading is a strained construction of the rule's text.

Q: What should a lawyer tell a client when the opposing party is a pro se lawyer?

A: Per the opinion, the lawyer should counsel the client not to engage in direct communications with the adverse pro se lawyer.

Background and rules framework

RPC 4.2 (the New Jersey analog to Model Rule 4.2) bars a lawyer, "[i]n representing a client," from communicating about the subject of the representation with a person the lawyer knows to be represented by another lawyer, absent consent or legal authorization. The Committee identifies the dispositive question as whether that opening phrase reaches a lawyer who appears for himself. It reads the phrase narrowly and points to RPC 3.2 (expediting litigation) and RPC 8.4(c) and (d) (dishonesty; conduct prejudicial to the administration of justice) as the rules that do govern a pro se lawyer's behavior toward an adverse party. The opinion engages ABA Formal Opinion 502, the Restatement (Third) of the Law Governing Lawyers, and the DRB's decision in In re Horowitz.

Citations and references

Rules of Professional Conduct:

• MR 4.2 / NJ RPC 4.2 (communication with a person represented by counsel)
• MR 3.2 / NJ RPC 3.2 (expediting litigation)
• MR 8.4 / NJ RPC 8.4(c), (d) (dishonesty; conduct prejudicial to the administration of justice)

Cases:

• In re Horowitz, DRB 19-468 (N.J. Disciplinary Review Board Nov. 18, 2020), reciprocal discipline; pro se lawyer found to have violated RPC 4.2
• In re Kane, 212 N.J. 476 (2012), affirming DRB findings

Other authorities and opinions cited:

• ABA Formal Op. 502 (Sept. 28, 2022): Model Rule 4.2 applies to pro se lawyers (majority); the Committee follows the dissent
• Restatement (Third) of the Law Governing Lawyers (ALI 2000), comment e: a lawyer pro se may communicate with a represented nonclient on the same basis as other principals

See also

• ABA Formal Op. 502: Pro Se Lawyer and Rule 4.2
• NJ ACPE Op. 739: Reply-All Group Emails and RPC 4.2
• SC Bar Ethics Op. 18-04: Reply-All to a Cc'd Client

Source

• Full text (Justia mirror): https://law.justia.com/cases/new-jersey/advisory-committee-on-professional-ethics/2024/acp746-1.html
• Issuing authority: New Jersey Supreme Court Advisory Committee on Professional Ethics, via the NJ Courts Supreme Court Committees page

Original opinion text

Reproduced from a full-text mirror of the official opinion for research purposes. Minor spacing artifacts from the source extraction may remain; the linked official source controls.

Appointed by the Supreme Court of New Jersey

OPINION 746

Application of RPC 4.2 to Lawyers Who Are Proceeding Pro Se in Legal Matters

The Advisory Committee on Professional Ethics has received several inquiries through the attorney ethics research assistance hotline about the application of Rule of Professional Conduct (RPC) 4.2 to lawyers who are proceeding pro se in legal matters. RPC 4.2 prohibits lawyers from communicating with a person who is represented by counsel about the subject of the representation without the other lawyer's consent. For the reasons set forth in this Opinion, the Committee finds that RPC 4.2 does not apply to pro se lawyers.

RPC 4.2 states, in pertinent part

In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows, or by the exercise of reasonable diligence should know, to be represented by another lawyer in the matter, . . . unless the lawyer has the consent of the other lawyer, or is authorized by law or court order to do so, or unless the sole purpose of the communication is to ascertain whether the person is in fact represented.

[RPC 4.2 (emphasis supplied).]

This Rule protects a represented person from adverse lawyers who can overreach. Such conduct deprives the client of the benefit of the client's counsel, thereby interfering with the attorney-client relationship. The Rule also prevents lawyers from eliciting privileged, confidential, or sensitive information from the person that may not have been shared if the person had the benefit of discussing the questions and responses with counsel first. See Restatement (Third) of the Law Governing Lawyers, Vol. 2, 99, comment b (ALI 2000).

While a party is permitted to speak directly with an adverse party, whether they are represented or not, a pro se lawyer has an advantage in such discussions due to the lawyer's legal training and experience. The American Bar Association (ABA), in Opinion 502 (September 28, 2022), found that pro se lawyers are prohibited by RPC 4.2 from communicating with persons who are represented by counsel. A decision by the Disciplinary Review Board (DRB), In re Horowitz, DRB 19-468 (November 18, 2020), found that a pro se lawyer violated RPC 4.2 when he made a customer complaint to employees of a vendor.1

Many jurisdictions, as well as the ABA and the DRB, have construed the language of RPC 4.2 to find that pro se lawyers represent themselves as a client and so the prohibition applies to them. Oregon recently amended its version of RPC 4.2 to explicitly include pro se lawyers within the prohibition. Some other jurisdictions point to the opening phrase of RPC 4.2, in representing a client, and find that the Rule does not apply to pro se lawyers because they are not representing clients. This is the position of Restatement (Third) of the Law Governing Lawyers, which states: A lawyer representing his or her own interests pro se may communicate with an opposing represented nonclient on the same basis as other principals . . . . Id. at comment e.

The ABA, in Formal Opinion 502, decided that Model RPC 4.2 applies to lawyers acting pro se because a pro se lawyer is representing a client. Pro se individuals represent themselves and lawyers are no exception to this principle. Opinion 502, page 3. Because pro se lawyers represent themselves as 'a client,' . . . direct pro se lawyer-to-represented person communication in such circumstances can result in a substantial risk of overreaching, disruption of the represented person's client-lawyer relationship, and acquisition of uncounseled disclosures. That risk outweighs the sometimes-salutary benefit of direct communication. Opinion 502, page 3.

Significantly, there was a dissent to this ABA opinion. The dissent agrees that the Rule ought to prohibit pro se lawyers from contacting represented parties but finds that the language of the Rule does not so provide. Self-representation is simply not 'representing a client,' nor will an average or even sophisticated reader of these words equate the two situations. Opinion 502, page 7 (dissent). The dissent recommends that the Rule be amended rather than construe it in such a fashion that the meaning strays from the text. By leaving this rule in place, we are also leaving in place a trap. The rule should be amended to achieve the result advocated for in the majority opinion. Opinion 502, page 8 (dissent).

The DRB, in Horowitz, found that RPC 4.2 applied to a pro se lawyer. The case involved reciprocal discipline for a Florida lawyer. The lawyer had attended a 90-minute continuing legal education seminar that was offered by telephone in 2014. Decision, page 3. Registrants were told they could call with questions and the lawyer did so but was placed on hold for 15 minutes, his question was not answered, and he missed 20 minutes of the presentation while on the phone. Ibid. He later wrote a letter to an employee of the company complaining about this and demanding a refund. Ibid. Six months later, another employee of the company filed an ethics grievance against the lawyer, stating that the company has legal counsel and the lawyer made threats against a represented employee of the company. Decision, pages 3-4. The Florida bar dismissed the grievance. Decision, page 4.

Thereafter, the lawyer wrote to the employee who had filed the grievance and stated that if he does not receive compensation, he would be filing suit. Decision, page 4. This prompted a second grievance to be filed by a company employee for contacting a represented party and demanding a refund in excess of the amount paid for the seminar. Ibid. The lawyer then consented to Florida discipline in the form of an admonition. Decision, page 8.

As the lawyer was also licensed in New Jersey, the Office of Attorney Ethics filed a reciprocal discipline complaint and the matter was heard by the DRB. The DRB found that the lawyer repeatedly, and unapologetically, communicated with [the company's] employees, in violation of RPC 4.2 and knew that the company's employees were represented by counsel. Decision, page 13.

Significantly, the DRB stated

Respondent's argument that he did not violate RPC 4.2, because he was acting pro se, denies our state's clear disciplinary precedent holding that an attorney always is bound by the RPCs; that his duty was neither eliminated nor diminished by his pro se status in the litigation; and that a [lawyer] pro se party is prohibited from communicating with represented parties, without the consent of opposing counsel. See In the Matter of Thomas Kane, DRB (October 10, 2012) (attorney who acted pro se in a divorce proceeding against his wife was charged with two violations of RPC 4.2; we dismissed both charges, finding that the attorney had the prior consent of his adversary to contact his represented wife, not based on a finding that the Rule was inapplicable to the facts (slip op. at 19-20); In re Kane, 212 N.J. 476 (2012) (affirming Board's findings). Thus, we reject respondent's unsupported arguments to the contrary, and find that he violated RPC 4.2.

[Horowitz Decision, page 14.]

The DRB, however, decided to impose no discipline for this violation because his conduct was de minimis, the lawyer had retired from New Jersey practice, and the public interest is fully protected without the need to discipline respondent. Decision, page 18. Two members of the DRB voted to dismiss, finding that the lawyer committed no misconduct. Ibid. Research did not reveal any discipline case other than Kane to support the DRB's decision.

The Committee finds that the ABA dissent and the Restatement (Third) present the better argument: to read the language in representing a client to include a lawyer acting pro se is a tortured and counterintuitive construction of the Rule. Ethics rules should be clear and straightforward; they should not be traps for the unwary. The language of RPC 4.2 simply does not apply to a pro se lawyer. That said, other ethics rules apply to a pro se lawyer's conduct. Lawyers who are proceeding pro se should always treat adverse parties with courtesy and consideration, not misrepresent facts or law, and refrain from overreaching, disrupting the represented person's client-lawyer relationship, or seeking to acquire uncounseled disclosures. RPC 3.2; RPC 8.4(c) and (d). Further, lawyers should counsel their clients not to engage in direct communications with an adverse pro se lawyer.

The Committee notes that if a lawyer is not proceeding pro se but, rather, is represented by counsel, RPC 4.2 does not prohibit that lawyer-party from speaking directly to the opposing party. The risk of overreaching is present whether the lawyer-party is represented or not but, according to the ABA and DRB, the lawyer is only prohibited from speaking to the opposing party when that lawyer is not represented by counsel. The prohibition – applying only when the lawyer is unrepresented – is inconsistent. The better approach is to caution lawyers to behave appropriately in both situations – when they are represented and when they are not – and to remind lawyers to advise their clients not to speak to adverse lawyer-parties outside of the presence of their own lawyers.

In sum, RPC 4.2 does not apply to lawyers who are proceeding pro se in legal matters, though other ethics rules apply to the conduct of such lawyers. Pro se lawyer-parties should always treat adverse parties with courtesy and consideration, not misrepresent facts or law, and refrain from overreaching, disrupting the represented person's client-lawyer relationship, or seeking to acquire uncounseled disclosures.

1 The Supreme Court dismissed charges of unethical conduct in this matter by order dated January 12, 2021. The single-page order did not provide reasons for the dismissal.