When a lawyer is a pro se plaintiff, does Rule 4.2 bar him from contacting the opposing party or its insurer directly, and can he have his non-lawyer spouse make the contact instead?

Plain-English summary

A husband and wife sued a local country club. The husband is a licensed attorney; the wife is not. The club's insurer retained a lawyer to represent the club. The inquiry asked four questions: whether the husband or the wife could contact the insurance company directly, and whether the husband or the wife could contact club management directly.

The committee first explained it cannot opine on the conduct of a non-lawyer, so the questions about the wife (questions 2 and 4) were outside its purview. It then held that Rule 4.2 applies to a lawyer representing himself pro se. Because the club is represented by counsel, if the insurer is also represented the husband should contact counsel rather than the insurer directly, unless given permission; if the insurer is not represented, the husband may contact it to discuss the case. The committee noted the wife, as a pro se litigant, is not subject to the Rules of Professional Conduct.

On contacting club management, the committee applied Rule 4.2 with Comments 4 and 7. Comment 4's allowance for parties to communicate with each other appears to contemplate non-lawyer parties. Comment 7 provides that, for a represented organization, Rule 4.2 bars communication with a current constituent who has authority to bind the organization on the matter, whose act or omission may be imputed to the organization, or who supervises, directs, or regularly consults with the organization's lawyer about the matter. The facts did not show whether club management fit those categories, so the committee advised the husband to use caution in contacting club employees. As to the wife, the committee cautioned the husband under Rule 8.4(a): he may not, through her acts, pursue a course of conduct that would violate the rules if done directly. He may advise her about a non-lawyer party's right to contact the other party (per Comment 4), but may not circumvent the rule by directing or monitoring her contacts or coaching her on the substance of those conversations.

In practice

The opinion holds that, under South Carolina Rule 4.2, a lawyer who appears pro se is bound by the no-contact rule and may not communicate directly with the represented opposing organization (the club) without its counsel's consent; whether he may contact the insurer depends on whether the insurer is represented. The opinion holds that under Rule 8.4(a) the lawyer may not use his non-lawyer spouse to make contacts he himself could not make, though he may inform her of a non-lawyer party's own right to contact the other party. For a represented organization, the opinion applies Comment 7's categories to determine which constituents are off-limits and advises caution where the facts are unclear.

Common questions

Q: Does Rule 4.2 apply to a lawyer who is representing himself?

A: Yes. The committee stated that Rule 4.2 applies to a lawyer representing himself pro se in a lawsuit.

Q: Can the pro se lawyer-plaintiff contact the opposing party's insurer directly?

A: Only if the insurer is unrepresented. The committee said if the insurer is represented, the husband should contact its counsel unless given permission; if it is not represented, he may contact it directly.

Q: Can he contact the represented organization's management directly?

A: He must be cautious. The committee applied Comment 7 to Rule 4.2, which bars contact with constituents who can bind the organization, whose conduct may be imputed to it, or who direct or consult with its lawyer, and advised caution because the facts did not show whether management fit those categories.

Q: Can the lawyer have his non-lawyer spouse make the contacts instead?

A: No, not to circumvent the rule. The committee said under Rule 8.4(a) he may not use her acts to do what the rules forbid him to do, and may not direct, monitor, or coach the substance of her contacts.

Background and rules framework

The opinion interprets South Carolina Rule 4.2 (communication with a person represented by counsel), with Comments 4 and 7, and Rule 8.4(a) (a lawyer may not violate the rules through the acts of another), which correspond to the like-numbered Model Rule provisions. The analysis turns on Rule 4.2's application to a pro se lawyer and on whether an organization's constituents fall within Comment 7's protected categories.

Citations and references

Rules of Professional Conduct:

• MR 4.2 / SC Rule 4.2, Comments 4 and 7 (communication with represented persons; represented organizations)
• MR 8.4 / SC Rule 8.4(a) (violating the rules through the acts of another)

See also

• SC Bar Ethics Op. 05-04: Suspicion vs. Knowledge
• ABA Formal Op. 07-445: Contacting Putative Class Members

Source

• Landing page: https://www.scbar.org/for-lawyers/quicklinks/legal-resources/ethics-advisory-opinions/ethics-advisory-opinion-11-01/
• Original PDF: https://www.scbar.org/media/lfbfqnxt/11-01.pdf

Original opinion text

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

UPON THE REQUEST OF A MEMBER OF THE SOUTH CAROLINA BAR, THE ETHICS ADVISORY COMMITTEE HAS RENDERED THIS OPINION ON THE ETHICAL PROPRIETY OF THE INQUIRER’S CONTEMPLATED CONDUCT. THIS COMMITTEE HAS NO DISCIPLINARY AUTHORITY. LAWYER DISCIPLINE IS ADMINISTERED SOLELY BY THE SOUTH CAROLINA SUPREME COURT THROUGH ITS COMMISSION ON LAWYER CONDUCT.

Ethics Advisory Opinion 11-01

SC Rules of Professional Conduct: 4.2, 8.4(a)

Facts

Plaintiffs, who are husband and wife, sued a local country club. Husband is a licensed attorney. The insurance company has retained an attorney to represent the Club.

Questions

1. Can husband contact the insurance company directly to discuss case?

2. Can wife (non-attorney) contact the insurance company directly to discuss the case?

3. Can husband contact the Club management directly to discuss the case?

4. Can wife (non-attorney) contact Club management directly to discuss the case?

Opinion

At the outset, it is important for the inquirer to understand that the Ethics Advisory Committee cannot offer an opinion as to the activities of a non lawyer. Therefore, questions 2 and 4 are not within the purview of the Committee.

Further, Husband must remain mindful of Rule 8.4(a). He may not through the acts of his wife pursue a course of conduct which would violate the Rules if done directly by him. Husband may advise wife as to the rights of a non-lawyer party to contact the other party directly as contemplated in comment 4 to Rule 4.2, discussed below, but cannot do so in a manner that circumvents the rule by directing or monitoring the wife's contacts or counseling her as to the substantive content of such conversations.

The Committee believes Rule 4.2 applies to a lawyer representing himself pro se in a lawsuit.

Rule 4.2 governs communications with persons represented by counsel. The Club, in this matter, is being represented by counsel. It is unclear from the facts as they were submitted whether the insurance company is represented by counsel. If the insurance company is represented by counsel, the appropriate course of action would be for the husband to contact the counsel, not the insurance company, unless permission is given to contact the insurance company directly. If the insurance company is not represented by counsel, the husband may contact the insurance company to discuss the case.

Wife, as a pro se litigant, is not subject to the Rules of Professional Conduct and the Committee may not offer an opinion as to the activities of a non lawyer.

Rule 4.2 also applies to the second part of the husband’s inquiry, as do comments 4 and 7. While comment 4 to Rule 4.2 indicates that parties to a matter may communicate with each other, the comment seems to contemplate a situation in which the parties are non lawyers.

Comment 7 indicates that, in the case of an organization that is represented, Rule 4.2 prohibits communications with any current members of the organization concerning the matter if the member either has the authority to bind the organization with respect to the matter, if the member’s actions may be imputed to the company, or if the member supervises, directs or regularly consults with the organization’s lawyer with respect to the matter. The facts do not indicate whether the “Club management” fits any of these categories, but the requester should use caution in his interactions with employees of the club, given the provisions of comment 7.