CBA Record November-December 2022

the “ABA Ethics Committee,” the com mittee charged with drafting the ABA’s formal ethics opinions) dissented from the opinion, writing that while there are a number of policy goals that would sup port Formal Op. 502’s conclusion, the actual language of Rule 4.2 does not. The dissent pointed to the fact that Rule 4.2 is limited to instances in which lawyers are representing clients but disagreed that the lawyer could be their own client. The dissent pointed out that many authori ties have agreed with their interpretation, including the Restatement (Third) of the Law Governing Lawyers. Illinois has case law going back sev eral decades that is consistent with ABA Formal Op. 502. In In re Segall, a pro se attorney was representing himself in a lawsuit brought against him by a credit card company for unpaid credit card bills. During the litigation, Segall com municated directly with the credit card company by sending a check for a small portion of the amount owed, with a note typed on the back of the check that said “acceptance, negotiation or endorsement of this draft shall constitute a full and final release in settlement of all claims and causes of action for Acct. No. xxx xxx-xxx-x in the name of Mort A. Segall.” Enclosed with the check was a letter to the credit card company indicating again that the check was in settlement for full payment of the amounts owed and in dis pute in the lawsuit. In imposing a sanction against Segall, the Illinois Supreme Court noted: “Respondent admits… he knowingly contacted a party represented by counsel without obtaining counsel’s consent. He argues, however, that these contacts were made on his own behalf as a litigant and thus were not during the course of his representation of a client. We disagree. An attorney who is himself a party to the litigation represents himself when he con tacts an opposing party.” In short, Formal Op. 502 gives us another example of a principle that it describes succinctly in the opinion — we can never take off our “lawyer hats,” even when representing ourselves.

PRACTICAL ETHICS BY TRISHA RICH NewABAGuidance on the No-Contact Rule

I n September the ABA issued Formal Opinion 502, which examines how ABA Model Rule 4.2 (the “no contact” or “anticontact” rule) is implicated when the lawyer is the pro se litigant. Illinois Rule of Professional Conduct 4.2 is iden tical to ABA Model Rule 4.2, although IRPC 4.2’s comments contain slight variations from the Model Rule, most of which are not significantly relevant to Formal Op. 502. In brief, IRPC 4.2 prohibits lawyers, when representing clients, from commu nicating about the subject of a represen tation to a person that the lawyer knows is represented by another lawyer in that matter, unless the lawyer has the consent of that person’s lawyer, or the communi cation is authorized by law or court order. The person (in most cases, the opposing or other party) themselves cannot consent to the communication — the consent has to come from the person’s attorney. The Rule also includes an exception for com munications that are authorized by law or other court order; the comments tell us that this includes communications by a lawyer on behalf of a client who is exercising a constitutional or other legal right to communicate with the govern ment. IRPC 4.2, Cmt. [5]. The Rule is intended to foster several goals, includ ing prohibiting lawyers from interfering in the relationships of other lawyers with their clients and minimizing a lawyer’s opportunity to elicit protected informa

tion from represented persons. A question arises: when a lawyer rep resents themselves pro se, does the fact that they are a lawyer prohibit them from communicating directly with a repre sented opposing party? Formal Op. 502 tells us that the answer is yes and indicates that it really isn’t even a close call. Accord ing to Formal Op. 502, “[w]hen a lawyer is self-representing, i.e., pro se , that lawyer may wish to communicate directly with another represented person about the subject of the representation and may believe that, because they are not representing another in the matter, the prohibition of Model Rule 4.2 does not apply. In fact, both the language of the Rule and its established purposes support the conclusion that the Rule applies to a pro se lawyer because pro se individu als represent themselves and lawyers are no exception to this principle.” This is despite the fact that the com mentary to Rule 4.2 specifically instructs that parties to a matter may communicate with each other. According to the ABA, a lawyer representing themselves in a matter and who directly communicates with the party on the other side implicates all the same policy concerns that the Rule intends to guard against, making the pro hibition well-founded. Two of the lawyers on the ABA’s Stand ing Committee on Ethics and Profes sional Responsibility (often referred to as

Trisha Rich is a litigator and legal ethicist at Holland & Knight and the President of the Association of Professional Responsibility Lawyers, the national bar association for legal ethicists. Youcan reachher at trisha.rich@hklaw.com, on LinkedIn at linkedin. com/in/trisharich, or on Twitter @_TrishRich.

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