What can a New York lawyer say to a self-represented person on the other side, and must the lawyer correct that person's confusion about the lawyer's role?

Plain-English summary

The Committee addressed what a lawyer may say to a self-represented person adverse to the lawyer's client, working from DR 7-104(A)(2) of the New York Code of Professional Responsibility (now Rule 4.3) and related provisions. Synthesizing prior ethics opinions, it identified three permissible communications: a lawyer may, but need not, advise a self-represented party to retain counsel and identify the legal issues counsel could usefully address; the lawyer may be obligated to give that advice when it would advance her own client's interests; and the lawyer may, but need not, provide incontrovertible factual or legal information, such as the client's own position in negotiations, non-negotiable procedural requirements, or the existence of a legal right like the right against self-incrimination.

For matters before a court or tribunal, the opinion added a further option: in light of growing court support for self-represented litigants, a lawyer may direct a self-represented adversary to available court facilities designed to assist them, such as an Office of the Self-Represented or a designated clerk.

The opinion then articulated a duty to clarify the lawyer's role. A lawyer engaging in (or declining) these communications must avoid misleading the self-represented party, citing the prohibitions on dishonesty and false statements (DR 1-102(A)(4); DR 7-102(A)(5)) and the Restatement's rule against misleading a nonclient about the lawyer's identity and interests. The opinion concluded that a lawyer must volunteer a clarification of her role when she knows or should know that a self-represented person has objectively manifested confusion about that role. It noted that self-represented persons vary widely in sophistication, and that the lawyer should weigh where the person falls on that continuum and whether the clarification should be put in writing, considering factors like the degree of demonstrated confusion and the existence or threat of litigation.

In practice

Under this opinion, interpreting the New York Code as it stood in 2009 (the analysis carries forward to Rule 4.3), a lawyer dealing with a self-represented adversary had a set of permitted communications (advising the person to get counsel, identifying legal issues, stating incontrovertible facts or law, and pointing to court self-help resources) but could not mislead the person about the lawyer's role or interests. Per the opinion, when the self-represented person objectively manifested confusion about the lawyer's role, the lawyer was required to clarify it, and should consider doing so in writing depending on the circumstances.

Because New York replaced the Code with the Rules of Professional Conduct effective April 1, 2009, and the Rules have since been amended, verify the current text of Rule 4.3 before relying on the specific lines the opinion drew.

Common questions

Q: Can a lawyer tell a self-represented opposing party to get a lawyer?

A: Yes. The opinion concluded a lawyer may advise a self-represented adversary to retain counsel and identify the legal issues counsel could usefully address, and may be obligated to do so when it would advance the lawyer's own client's interests.

Q: What information may the lawyer give a self-represented person?

A: Per the opinion, the lawyer may provide incontrovertible factual or legal information, such as the client's own position in negotiations, non-negotiable procedural requirements, or the existence of a legal right like the right against self-incrimination.

Q: Must the lawyer correct a self-represented person who is confused about the lawyer's role?

A: Yes. The opinion concluded the lawyer must volunteer a clarification of her role when she knows or should know the self-represented person has objectively manifested confusion about it, and may not mislead that person.

Q: Can the lawyer point the person to court resources?

A: Yes. The opinion stated that for matters before a tribunal, the lawyer may direct a self-represented adversary to available court facilities for self-represented litigants, such as an Office of the Self-Represented or a designated clerk.

Background and rules framework

The opinion interpreted DR 7-104(A)(2) of the New York Code of Professional Responsibility (dealing with unrepresented persons), corresponding to Model Rule 4.3 and current New York Rule 4.3, together with the misconduct and candor provisions then at DR 1-102 and DR 7-102 (now Rule 8.4 and Rule 3.3). It drew on prior New York State and City Bar opinions (including N.Y. State 728, 477, and 708, and ABCNY Formal Op. 2004-3) and the Restatement (Third) of the Law Governing Lawyers § 103.

Citations and references

Rules of Professional Conduct:

• New York DR 7-104(A)(2) / Model Rule 4.3 / current New York Rule 4.3 (unrepresented persons)
• New York DR 1-102(A)(4), DR 7-102(A)(5) / Model Rule 8.4 (misconduct; false statements)

Cases:

• Niesig v. Team I, 76 N.Y.2d 363 (1990) (lawyer must make identity and interest known)

Other authority and opinions:

• Restatement (Third) of the Law Governing Lawyers § 103 (2000)
• N.Y. State 728 (2000); N.Y. State 477 (1977); N.Y. State 708 (1998); ABCNY Formal Op. 2004-3 (government lawyers and unrepresented persons)

See also

• NYC Bar Ethics Op. 2009-5: Discouraging Unrepresented Witnesses from Voluntarily Cooperating
• ABA Formal Op. 472: Communication With a Person Receiving Limited-Scope Representation
• ABA Formal Op. 514: Advising an Organization on a Constituent's Legal Risk

Source

• Landing page: https://www.nycbar.org/reports/formal-opinion-2009-02-ethical-duties-concerning-self-represented-persons/