NYSBA 2011-09-27

Is a lawyer who is representing himself, or who is a represented party, bound by the no-contact rule when communicating with an opposing party who has counsel?

Short answer: Yes. A lawyer who is a party to a matter, whether appearing pro se or represented by his own counsel, is subject to Rule 4.2's no-contact rule. He may not communicate directly with a counterparty he knows to be represented unless authorized by law, he obtains opposing counsel's prior consent under Rule 4.2(a), or he gives reasonable advance notice under Rule 4.2(b).

Disclaimer: Advisory only. Not binding precedent.

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 at the bottom of this page) is the authoritative source for any reliance.

NY State Bar Ethics Opinion 879: No-Contact Rule for Pro Se Lawyers

Short answer: A lawyer who is a party to a matter, whether representing himself or represented by his own counsel, is subject to the no-contact rule, and may not communicate directly with a counterparty he knows to be represented unless authorized by law, he obtains opposing counsel's prior consent under Rule 4.2(a), or he gives reasonable advance notice under Rule 4.2(b).

Disclaimer: This is an advisory ethics opinion. Advisory opinions are not binding; they interpret the New York State Bar Association's rules of professional conduct and are persuasive authority. This summary is for research purposes only and is not legal advice. Verify current rules before acting on any specific guidance.

About this page: The plain-English summary and Q&A below were written by Ezel based on the official opinion. We do not reproduce the opinion text on this page; follow the linked source for the official text, which controls.

View original opinion

Plain-English summary

The committee addressed two related questions: whether a lawyer representing himself may communicate with another party he knows to be represented by counsel, and whether the answer changes if the lawyer is himself represented by his own counsel in the matter (paragraph 1).

Rule 4.2(a) bars a lawyer, "in representing a client," from communicating about the subject of the representation with a person known to be represented by another lawyer, absent that lawyer's consent or legal authorization; Rule 4.2(b) lets a lawyer cause a client to communicate with a represented person if the lawyer gives reasonable advance notice to that person's counsel. The committee identified the difficulty in the introductory phrase "in representing a client": a lawyer who represents himself, or who is represented by his own counsel, is arguably not "representing a client" when he contacts a represented party (paragraphs 2 through 3).

The committee resolved the ambiguity by tracing the rule's history. Under the former Code, EC 7-18 expressly applied the no-contact rule to a lawyer who was a party, whether appearing pro se or represented by counsel, and DR 7-104(A) derived from Canon 9 of the 1908 Canons, which focused on the lawyer's professional status rather than his role in a matter. The committee found no indication that the wording change in Rule 4.2 was meant to narrow this scope, and read the rule consistently with DR 7-104 and its policies, reinforced by Comment [1]'s concern with "other lawyers who are participating in the matter." It noted that the Administrative Board had rejected a proposal to drop the advance-notice requirement, restoring the substance of DR 7-104(B) (paragraphs 4 through 12).

The committee observed that its conclusion aligns with most courts and ethics committees, citing decisions such as In re Schaefer (Nev.), Runsvold v. Idaho State Bar, In re Segall (Ill.), and In re Haley (Wash.), and rejecting the contrary view in Pinsky v. Statewide Grievance Committee (Conn.) and California's Rule 2-100 discussion. It added that the rule applies to a discharged lawyer who contacts a former client once successor counsel is engaged (citing N.Y. City 2011-1), and that even when contact is permitted, the lawyer must avoid overreaching, must not undermine the counterparty's relationship with counsel or probe privileged information, and remains bound by Rule 8.4(c)'s bar on dishonesty (paragraphs 13 through 19).

In practice

The opinion holds that, under Rule 4.2 as it stood at the time, a lawyer who is a party to a matter does not shed the no-contact rule by appearing pro se or by retaining his own counsel; the rule's introductory phrase "in representing a client" does not exclude lawyer-parties. To contact a counterparty known to be represented, the lawyer must be authorized by law, obtain opposing counsel's prior consent under Rule 4.2(a), or give reasonable advance notice under Rule 4.2(b). The committee grounded the result in the rule's lineage from DR 7-104 and Canon 9 and in the majority of courts and ethics committees, and noted the rule also reaches a discharged lawyer contacting a former client after successor counsel appears. Permitted contacts still must avoid overreaching and comply with Rule 8.4(c).

Common questions

Q: I'm a lawyer suing on my own behalf. Can I contact the represented opposing party directly?

A: No, not without authorization. The committee held a pro se lawyer is bound by Rule 4.2 and must obtain opposing counsel's consent under Rule 4.2(a) or give reasonable advance notice under Rule 4.2(b) (paragraphs 12, 20).

Q: Does it change anything if I've hired my own lawyer for the matter?

A: No. The committee held the no-contact rule applies whether the lawyer-party appears pro se or is represented by counsel (paragraphs 1, 12).

Q: Why doesn't the phrase "in representing a client" let lawyer-parties out?

A: The committee read that phrase in light of the rule's history (DR 7-104 and Canon 9) and its protective policies, concluding the drafters did not intend to exempt lawyers who are parties (paragraphs 8, 11).

Q: I was just discharged. Can I contact my former client to discuss the case or my fees?

A: Once successor counsel is engaged, the committee held Rule 4.2 bars contacting the former client about the prior representation without successor counsel's consent (citing N.Y. City 2011-1) (paragraph 17).

Background and rules framework

The opinion interprets New York Rule 4.2(a) and (b) (communication with a represented person), with reference to Rule 8.4(c) (dishonesty), corresponding to ABA Model Rules 4.2 and 8.4. The analysis turns on the lineage of Rule 4.2 from DR 7-104 and Canon 9 of the 1908 Canons of Professional Ethics, and on Comment [1]'s statement of the rule's protective purpose.

Citations and references

Rules of Professional Conduct:

MR 4.2 / NY Rule 4.2(a), (b): communication with a person represented by counsel
MR 8.4 / NY Rule 8.4(c): conduct involving dishonesty, fraud, deceit, or misrepresentation

Cases:

In re Schaefer, 25 P.3d 191 (Nev. 2001); Runsvold v. Idaho State Bar, 925 P.2d 1118 (Idaho 1996); In re Haley, 126 P.3d 1262 (Wash. 2006), pro se lawyers are bound by Rule 4.2
Pinsky v. Statewide Grievance Committee, 578 A.2d 1075 (Conn. 1990), contrary view, rejected by the committee and by In re Lucas, 789 N.W.2d 73 (N.D. 2010)

Other opinions cited:

N.Y. City 2011-1 (2011): a self-represented lawyer may not contact a former client about the prior representation without successor counsel's consent
D.C. Opinion 258 (1995); Illinois Opinion 96-09 (1997); Rhode Island Opinion 2002-04 (2002)

Source

Landing page: https://nysba.org/ethics-opinion-879/