Legal Ethics

If you think a seeming pro se litigant has a lawyer, ask to confirm, ABA ethics opinion says

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Lawyers should reduce limited-scope legal representation agreements to writing and should ask pro se litigants whether they are being represented by counsel to avoid violating the “no-contact” rule, explains a formal ethics opinion recently released by the ABA’s Standing Committee on Ethics and Professional Responsibility.

Formal Ethics Opinion 472 (PDF) addresses the intersection between three model rules: 1.2, 4.2, and 4.3. Rule 1.2(c) provides that lawyers can provide limited-scope legal representation if the limitation is reasonable and the client gives informed consent. The opinion recommends that lawyers confirm such arrangements in writing. Some states require written agreements for limited-scope representations, while other state rules state that such agreements are preferred.

Rule 4.2, the “no-contact” rule, provides that lawyers shall not communicate about the subject of a representation with a person the lawyer knows to have legal representation. Instead, the lawyer should communicate only with the person’s attorney. “Lawyers confronted with a person who appears to be managing a matter pro se but may be receiving or have received legal assistance, often are left with a quandary,” the opinion acknowledges.

The opinion explains that in some circumstances a lawyer may be able to infer that a person has been helped by an attorney. For example, a pro se litigant may appear in court with a motion or pleading that appears to have been drafted by an attorney.

The opinion recommends that an attorney facing a person on the other side who appears to have received limited-scope representation should ask the person whether they currently are being represented by counsel on the matter. If the person says yes, then the attorney must comply with the no-contact rule.

If the person says they are not represented, the attorney may proceed under Rule 4.3, which governs communications with unrepresented persons.

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