If I am a lawyer who is personally a party to a lawsuit but represent no one else in it, can I contact the represented opposing party directly without going through their lawyer?

Plain-English summary

The opinion addresses a lawyer who is personally a party to a lawsuit (here, wanting to discuss settlement) and represents no other party in the matter. The question is whether Rule 4.02(a)'s prohibition on contacting represented persons stops the lawyer from speaking directly with the opposing party without the opposing party's lawyer's consent.

The Committee reads Rule 4.02(a), which is based on ABA Model Rule 4.2, as applying only to a lawyer "in representing a client." Because a lawyer who is a party but represents no other party is not representing a client in the matter, the rule does not apply, and the lawyer is not prohibited from communicating directly with the represented adverse party. The opinion notes that some courts have taken the contrary view, treating a lawyer who is a party as a lawyer representing a client (himself) for purposes of Rule 4.02(a) (citing Vickery v. Commission for Lawyer Discipline and ABA Informal Opinion 982), but the Committee declines that reading and aligns with the Restatement (Third) of the Law Governing Lawyers Section 99(1)(b).

The opinion adds that other rules still apply. Because direct contact with a non-lawyer party carries a risk of misrepresentation or intimidation, the lawyer/party must take particular care not to engage in conduct involving dishonesty, fraud, deceit, or misrepresentation, which would violate Rule 8.04(a)(3).

In practice

Under this opinion, and under the Texas rule as it stood at the time of the opinion, a lawyer who is a party but represents no other party in the matter is not subject to Rule 4.02(a)'s no-contact restriction and may communicate directly with a represented adverse party. The opinion holds that this conclusion does not lift the lawyer's obligations under Rule 8.04(a)(3); a communication that involves dishonesty, fraud, deceit, or misrepresentation violates the rules.

Common questions

Q: I'm a lawyer being sued personally. Can I talk settlement directly with the other side even though they have a lawyer?

A: Per Opinion 653, yes, if you represent no other party in the matter; Rule 4.02(a) applies only to a lawyer "in representing a client," so it does not reach a lawyer acting solely as a party.

Q: Does it matter that some courts disagree?

A: The opinion acknowledges that some court decisions treat a lawyer-party as representing a client (himself) and would apply Rule 4.02(a), but the Committee rejects that interpretation and follows the Restatement (Third) of the Law Governing Lawyers Section 99(1)(b).

Q: Are there limits on what I can say in that direct contact?

A: Yes. The opinion states the lawyer must exercise particular care to avoid any communication that would constitute dishonesty, fraud, deceit, or misrepresentation under Rule 8.04(a)(3).

Background and rules framework

The opinion interprets Texas Disciplinary Rule 4.02(a) (communication with one represented by counsel), which is based on ABA Model Rule 4.2, and Rule 8.04(a)(3) (conduct involving dishonesty, fraud, deceit, or misrepresentation), which corresponds to ABA Model Rule 8.4(c). The Committee's analysis turns on the "in representing a client" predicate of Rule 4.02(a) and on Comment 2 to that rule, which permits communications between parties so long as a party's lawyer does not cause or encourage the communication without the other lawyer's consent.

Citations and references

Rules of Professional Conduct:

• MR 4.2 (communication with person represented by counsel)
• MR 8.4(c) (conduct involving dishonesty, fraud, deceit, or misrepresentation)
• Texas Disciplinary Rules 4.02(a), 8.04(a)(3)

Cases:

• Vickery v. Commission for Lawyer Discipline, 5 S.W.3d 241 (Tex. App.-Houston (14th Dist.) 1999, pet. denied)

Other authorities:

• Restatement (Third) of the Law Governing Lawyers (2000) Section 99(1)(b)

Other opinions cited:

• ABA Committee on Professional Ethics, Informal Opinion 982 (1967)

See also

• ABA Formal Op. 502: Communicating With a Represented Person by a Pro Se Lawyer
• ABA Formal Op. 503: "Reply All" in Electronic Communications
• ABA Formal Op. 472: Communication With a Person Receiving Limited-Scope Legal Services

Source

• Landing page: https://www.legalethicstexas.com/resources/opinions/opinion-653/
• Original PDF: https://tcle-web.s3.amazonaws.com/public/documents/Opinion_653.pdf

Original opinion text

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

QUESTION PRESENTED

May a lawyer who is a party in a legal matter but who does not represent any other party in the matter communicate concerning the matter directly with a represented adverse party without the consent of the adverse party's lawyer?

STATEMENT OF FACTS

A lawyer who is a party to a lawsuit desires to discuss settlement with the opposing party without seeking the consent of the lawyer for the opposing party. The lawyer does not represent any other party in the lawsuit.

DISCUSSION

Rule 4.02(a) of the Texas Disciplinary Rules of Professional Conduct states:

"In representing a client, a lawyer shall not communicate or cause or encourage another to communicate about the subject of the representation with a person, organization or entity of government the lawyer knows to be represented by another lawyer regarding that subject, unless the lawyer has the consent of the other lawyer or is authorized by law to do so."

Rule 4.02(a), which is based on Rule 4.2 of the American Bar Association Model Rules of Professional Conduct, generally prohibits a lawyer who is representing a client from communicating concerning the subject of the representation with another party who is also represented by counsel unless the other party's counsel consents. However, Rule 4.02(a) does not prohibit communications between the parties as long as a party's lawyer "does not cause or encourage the communication without the consent of the lawyer for the other party." Comment 2 to Rule 4.02.

In the opinion of the Committee, Rule 4.02(a) of the Texas Disciplinary Rules does not apply to a lawyer who is a party to a lawsuit or transaction but does not represent any other party in the matter. Thus the lawyer/party who does not represent any other party in the legal matter is not prohibited by Rule 4.02(a) from communicating directly with an adverse party in the matter without the consent of the adverse party's lawyer. The Texas Disciplinary Rules of Professional Conduct are based in part on treating clients as separate persons with whom lawyers, also as separate persons, may establish representation relationships. In the opinion of the Committee, to say that, in applying Rule 4.02(a), a lawyer who is a party in a matter is to be viewed as part lawyer and part client with the lawyer part representing the client part in the matter is to strain the language of the Rule beyond its intended meaning. The Committee notes that some court decisions have taken the contrary interpretation and ruled that a lawyer who is a party in a matter is at least in some circumstances to be viewed as a lawyer representing a client (himself) for purposes of making Rule 4.02(a) applicable. With this interpretation, the lawyer/party who communicates concerning the legal matter with an adverse party who is represented by another lawyer will violate Rule 4.02(a) if the communication is without the consent of the adverse party's lawyer. See Vickery v. Commission for Lawyer Discipline, 5 S.W.3d 241 (Tex. App. - Houston (14th Dist.) 1999, pet. denied); see also American Bar Association Committee on Professional Ethics, Informal Opinion 982 (1967). This interpretation, however, is rejected in Restatement (Third) of the Law Governing Lawyers (2000) Section 99(1)(b), which takes a position consistent with the position of the Committee in this opinion (the prohibition on communications with another represented party without consent of the party's lawyer does not apply in the case of a lawyer who is a party in a legal matter and who represents no other party in the matter).

Although in the opinion of the Committee the requirements of Rule 4.02(a) will not apply to a lawyer's communications with an adverse party concerning a legal matter if the lawyer is a party in the matter but represents no other party in the matter, such communications will be subject to other requirements of the Texas Disciplinary Rules. Because of the risk that a lawyer's direct communication with a party who is not a lawyer could in some cases be a means of misrepresentation or intimidation by the lawyer, a lawyer/party who chooses to communicate directly with another party without consent of that party's lawyer must exercise particular care to avoid any communication with the adverse party that in the circumstances would constitute "conduct involving dishonesty, fraud, deceit or misrepresentation" in violation of Rule 8.04(a)(3).

CONCLUSION

Under the Texas Disciplinary Rules of Professional Conduct, a lawyer who is a party in a legal matter but who does not represent any other party in the matter may communicate concerning the matter directly with a represented adverse party without the consent of the adverse party's lawyer. However, a lawyer will violate the Texas Disciplinary Rules if the lawyer's communication with the adverse party involves dishonesty, fraud, deceit or misrepresentation.

Tex. Comm. On Professional Ethics, Op. 653 (2016)