RPC 4.2 - Communication with Person Represented by a Lawyer

• Proposed Changes to RPC 4.2 - Communication with Person Represented by a Lawyer (in Word Format)
• Comments Received for RPC 4.2 - Communication with Person Represented by a Lawyer

A. Name of Proponent: Washington State Bar Association.

B. Spokepersons:

Bradford E. Furlong, President, Washington State Bar Association, 1325 4^th Avenue, Suite 600, Seattle, WA 98101-2539

Jeanne Marie Clavere, Professional Responsibility Counsel, Washington State Bar Association, 1325 4^th Avenue, Suite 600, Seattle, WA 98101-2539

C. Purpose:

The purpose of the suggested amendment to RPC 4.2 is to clarify the ability of a lawyer acting pro se in a litigation to communicate directly with a represented party.

In 2015, the Washington State Bar Association’s (WSBA) Committee on Professional Ethics (CPE) took up the issue of a lawyer acting pro se who wants to communicate with a represented party. Following an extensive review of opinions from other jurisdictions, a majority held the view that RPC 4.2 does apply to lawyers. However, no advisory opinion in Washington provided specific clarity on the issue. The CPE ultimately recommended new Comment [13] to RPC 4.2 to provide guidance to lawyers on whether and when RPC 4.2 applies to lawyers as pro se litigants or in a nonrepresentational capacity.

RPC 4.2, in full, states:

In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order.

Neither the rule nor the comments currently provides express guidance for a lawyer who is involved in a matter personally, and who is either (a) representing himself or herself (pro se lawyer) or (b) being represented by retained counsel (represented lawyer) for the matter. The intent of this suggested amendment is to provide such guidance consistent with what the Washington Supreme Court has already made clear.

The court addressed the situation of the pro se lawyer under RPC 4.2 at some length in In re Disciplinary Proceeding Against Haley, 156 Wn.2d 324, 126 P.3d 1262 (2006).

In Haley, lawyer Haley was proceeding pro se in an action he had brought against the chief executive officer of a company Haley had been involved with as a shareholder and a board member. While proceeding pro se, he sent a settlement proposal to the defendant and his wife although he knew they were represented by counsel. He followed the letter with a phone call to the defendant. A hearing officer and the WSBA’s Disciplinary Board found that Haley had violated RPC 4.2, and the board recommended he be suspended for six months for this violation. The Supreme Court concluded that RPC 4.2 does apply to lawyers proceeding pro se, but declined to apply this conclusion to Haley because the existing rule and commentary were sufficiently unclear and because Haley might reasonably have concluded that he was not subject to RPC 4.2. The court made clear that it would apply its interpretation of RPC 4.2 prospectively only.

The court’s full discussion was as follows:

Applicability of RPC 4.2(a) to Lawyer Acting Pro Se. RPC 4.2(a) reads in full as follows:

In representing a client, a lawyer shall not communicate about the subject of the representation with a party the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized by law to do so.^[1]

The rule is virtually identical to model rule 4.2. See ABA [the American Bar Association’s (ABA)] Annotated Model Rules of Professional Conduct (5th ed. 2003) (ABA Annotated Model Rules) rule 4.2. While we have not formally adopted the commentary to the ABA Annotated Model Rules, we have noted that it “may be ‘instructive in exploring the underlying policy of the rules.’ ” In re Disciplinary Proceeding Against Carmick, 146 Wn.2d 582, 595, 48 P.3d 311 (2002) (quoting State v. Hunsaker, 74 Wn.App. 38, 46, 873 P.2d 540 (1994)). As the comment to model rule 4.2 explains, the rule aims to protect those represented by counsel “against possible overreaching by other lawyers who are participating in the matter, interference by those lawyers with the client-lawyer relationship and the uncounselled disclosure of information relating to the representation.” ABA Model Rule 4.2 cmt.1. In Carmick, we acknowledged that “[t]he rule's purpose is to prevent situations in which a represented party is taken advantage of by adverse counsel.” 146 Wn.2d at 597 (citing Wright v. Grp. Health Hosp., 103 Wn.2d 192, 197, 691 P.2d 564 (1984)).

At issue in the present case is whether RPC 4.2(a) applies to lawyers acting pro se—or, more precisely, whether a lawyer who is representing himself or herself is, in the words of RPC 4.2(a), “representing a client.” This court has not previously addressed this issue; nor has the WSBA issued an ethics opinion, formal or informal, on the question. Other jurisdictions that have considered the rule's applicability to lawyers acting pro se have generally concluded that the policies underlying the rule are better served by extending the restriction to lawyers acting pro se. See In re Segall, 117 Ill. 2d 1, 5–6, 509 N.E. 2d 988, 109 Ill. Dec. 149 (1987); Comm. on Legal Ethics v. Simmons, 184 W. Va. 183, 185, 399 S.E.2d 894 (1990); Sandstrom v. Sandstrom, 880 P.2d 103, 108–09 (Wyo. 1994); Runsvold v. Idaho State Bar, 129 Idaho 419, 420–21, 925 P.2d 1118 (1996); Vickery v. Comm'n for Lawyer Discipline, 5 S.W.3d 241, 259 (Tex. Ct. App. 1999); In re Discipline of Schaefer, 117 Nev. 496, 507–08, 25 P.3d 191 (2001).

Haley asks this court to take the contrary view and hold that the plain meaning of the word `client’ in RPC 4.2(a) precludes application of the rule to a lawyer acting pro se. The word “client” is variously defined as “[a] person or entity that employs a professional for advice or help in that professional's line of work,” BLACK'S LAW DICTIONARY 271 (8th ed. 2004), and “a person who engages the professional advice or services of another.” WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 422 (2002). Thus, for the rule to apply to lawyers acting pro se, such lawyers would, in effect, be employing or engaging themselves for advice, help, or services. This, as Haley contends, suggests that lawyers who are acting pro se are excluded from the scope of the rule because such lawyers have no client.

In the alternative, Haley maintains that, even if RPC 4.2(a) were construed to restrict pro se lawyers from contacting represented parties, we should conclude that the rule as applied to him, a lawyer proceeding pro se, was unconstitutionally vague, violating his constitutional due process rights. Such a resolution finds support in Schaefer, 117 Nev. 496. There, the Nevada State Supreme Court relied on the principle that “a statute or rule is impermissibly vague if it `either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application.’” Id. at 511 (quoting Connally v. Gen. Constr. Co., 269 U.S. 385, 391, 46 S. Ct. 126, 70 L. Ed. 322 (1926)). The Schaefer court based its determination that Nevada's Supreme Court Rule 182, a rule identical to RPC 4.2(a), was unconstitutionally vague on “the absence of clear guidance” from the Nevada State Supreme Court and on “the existence of conflicting authority from other jurisdictions.” 117 Nev. at 512; see State Bar of Tex. v. Tinning, 875 S.W.2d 403, 408 (Tex. App. 1994) (applying standard that “statute, rule, regulation, or order is fatally vague only when it exposes a potential actor to some risk or detriment without giving fair warning of the nature of the proscribed conduct”); see also In re Ruffalo, 390 U.S. 544, 552, 88 S. Ct. 1222, 20 L. Ed. 2d 117 (1968) (holding that, in state disbarment proceeding, “absence of fair notice as to the reach of the grievance procedure” violated attorney's due process rights).

Both factors relied on in Schaefer are present here. First, as noted above, no prior opinion of this court has addressed the application of RPC 4.2(a) to lawyers proceeding pro se. Second, in late 1996 and early 1997 when Haley contacted Highland, authority permitting such contacts counterbalanced the prohibitions then existing from four jurisdictions. See Segall, 117 Ill. 2d at 5–6; Simmons, 184 W. Va. at 185; Sandstrom, 880 P.2d at 108–09; Runsvold, 129 Idaho at 420–21. The comment to rule 2–100 of the California RPCs, a rule identical to RPC 4.2(a) in all material respects, explicitly permits a lawyer proceeding pro se to contact a represented party:

[T]he rule does not prohibit a [lawyer] who is also a party to a legal matter from directly or indirectly communicating on his or her own behalf with a represented party. Such a member has independent rights as a party which should not be abrogated because of his or her professional status. To prevent any possible abuse in such situations, the counsel for the opposing party may advise that party (1) about the risks and benefits of communications with a lawyer-party, and (2) not to accept or engage in communications with the lawyer-party.

Cal. RPC 2–100 discussion ¶ 2. Likewise, a comment to the Restatement specifically provides that “[a] lawyer representing his or her own interests pro se may communicate with an opposing represented nonclient on the same basis as other principals.” RESTATEMENT (THIRD) OF THE LAW: THE LAW GOVERNING LAWYERS § 99 cmt. e at 73 (2000).

Alongside these explicit statements permitting the questioned contact, other authorities supported a reasonable inference that our RPC 4.2(a) did not foreclose a pro se lawyer's communication with a represented opposing party. For example, the comparable rule in Oregon, [Or. Code of Prof’l Responsibility Disciplinary Rule] 7–104(A)(1), put lawyers acting pro se squarely within the rule's ambit:

(A) During the course of the lawyer's representation of a client, a lawyer shall not:

(1) Communicate or cause another to communicate ... with a person the lawyer knows to be represented by a lawyer .... This prohibition includes a lawyer representing the lawyer's own interests.”

The absence of an explicit prohibition in RPC 4.2(a) could have suggested that Washington's rule was narrower in scope than Oregon's and did not apply to lawyers acting pro se. Additionally, the commentary to model rule 4.2 includes the statement that “[p]arties to a matter may communicate directly with each other.” ABA Annotated Model Rules rule 4.2 cmt. 4, at 417. Unlike the commentary to the restatement and to California's RPC 2–100, this comment does not pointedly refer to a lawyer-party acting pro se; consequently, the breadth of the statement permits an inference that all parties may communicate unreservedly with each other. Finally, the holding in Pinsky v. Statewide Grievance Committee, 216 Conn. 228, 578 A.2d 1075 (1990), appears to call into question the policy concerns supporting the application of RPC 4.2(a) to lawyers acting pro se. In Pinsky, the Connecticut State Supreme Court concluded that a represented lawyer-party had not violated an identical version of RPC 4.2(a) when he directly contacted his landlord, who was also represented by counsel, during an eviction matter. The Pinsky court took note that “[c]ontact between litigants ... is specifically authorized by the comments under rule 4.2” and concluded that Pinsky was not “`representing a client’” as stated in the rule. Id. at 236. The Pinsky court thus determined that communication between a represented lawyer-party and a represented nonlawyer party did not conflict with a key purpose of RPC 4.2(a)—the protection of a represented nonlawyer party from “possible overreaching by other lawyers who are participating in the matter.” ABA Annotated Model Rules rule 4.2 cmt. 1, at 417. Because the Pinsky decision did not address why contacts from a lawyer acting pro se would pose a greater threat of overreaching than would contacts from a represented lawyer-party[—that a lawyer-party seeks representation may at least suggest that he or she does not have `the superior knowledge and skill of the opposing lawyer’ in the subject of the litigation, a circumstance that would arguably diminish the risk of overreaching in the represented lawyer-party's contacts with other represented parties, Pinsky, 216 Conn. at 236—], Pinsky provides further equivocal authority on the application of RPC 4.2(a) to lawyers acting pro se.

In sum, consistent with the resolution of the same issue in Schaefer, we hold that a lawyer acting pro se is “representing a client” for purposes of RPC 4.2(a), but given the absence of a prior decision from this court, along with the presence of conflicting or equivocal authority from other jurisdictions and legal commentaries, we find the rule impermissibly vague as to its applicability to pro se attorneys and thus apply our interpretation of the rule prospectively only. We therefore dismiss the violation alleged in count 2. We need not reach Haley's alternative contention that the application of RPC 4.2(a) to his communications with Highland violated his free speech rights.

Id. at 333-39 (emphasis added) (some alterations in original) (footnotes omitted).

Thus, despite considerable authority to the contrary, the Haley opinion prohibits pro se lawyers from making ex parte contact with other persons known to be represented without the consent of the other person’s attorney.

The Haley opinion did not state whether the prohibition applies when the lawyer is represented by another and is not acting pro se. The proposed comment answers this related question in the negative, concluding that the rule does not apply to lawyers who have retained counsel and are not acting pro se. There are several reasons that support a different result in the case of a represented lawyer.

First, and foremost, this portion of the proposed comment is based on the language of the rule itself. RPC 4.2 imposes the prohibition only on lawyers who are “representing a client.” A lawyer who has retained counsel to represent him or her in a matter is not “representing a client” as is a pro se lawyer who is self-representing.²

Second, a comment to RPC 4.2 states, “Parties to a matter may communicate directly with each other, and a lawyer is not prohibited from advising a client concerning a communication that the client is legally entitled to make. Also, a lawyer having independent justification or legal authorization for communicating with a represented person is permitted to do so.” RPC 4.2 cmt 4.³ This comment expressly permits parties who are represented to communicate directly with one another and permits their attorneys to advise them of this right.⁴

Third, the Haley court suggested that a different conclusion as to the applicability of RPC 4.2 might be justified where a lawyer has retained counsel:

That a lawyer-party seeks representation may at least suggest that he or she does not have “the superior knowledge and skill of the opposing lawyer” in the subject of the litigation, a circumstance that would arguably diminish the risk of overreaching in the represented lawyer-party's contacts with other represented parties. Pinsky, 216 Conn. at 236.

Haley, 156 Wn.2d at 338 n.9. This language suggests that the court might find the case of the represented lawyer party distinguishable from that of the pro se lawyer. It also demonstrates that it is currently unclear in Washington whether a represented lawyer would violate RPC 4.2 in communicating directly with other represented persons.

Finally, a represented lawyer’s rights as a party should not be overlooked. As the comments to California’s RPC 2-100 (which expressly exempts not only represented but pro se lawyers from the prohibition of that state’s version of RPC 4.2) point out: “[A lawyer] member has independent rights as a party which should not be abrogated because of his or her professional status. To prevent any possible abuse in such situations, the counsel for the opposing party may advise that party (1) about the risks and benefits of communications with a lawyer-party, and (2) not to accept or engage in communications with the lawyer-party.”⁵ Prohibiting a represented lawyer from communicating directly with another represented person arguably puts the lawyer at a disadvantage if other nonlawyer represented persons can engage in direct communication with represented persons (other than the lawyer) without the consent of their lawyers. Lawyers have no monopoly on persuasive skills. Nonlawyers may be just as persuasive in seeking to resolve matters without the involvement of lawyers as a lawyer can be. Furthermore, there are things to be said for the ability of persons involved in a matter being able to resolve differences among themselves without the involvement of their retained lawyers. If RPC 4.2 is understood to preclude represented lawyers from initiating such direct communication, it would also preclude such represented lawyers from talking to other represented persons who initiate such contacts. There is no good reason that such an opportunity should be denied to represented lawyers.

In the end, however, the predicate for applying RPC 4.2 to a represented lawyer is simply absent in this situation. The represented lawyer is not “representing a client.” RPC 4.2 should prohibit a represented lawyer from communicating directly with another represented person. Accordingly, the comment should clarify that RPC 4.2 does not prohibit represented lawyers from communicating directly with other represented persons without the consent of their lawyers.

It follows then that if a represented lawyer is expressly serving as cocounsel in his/her matter, that lawyer should be subject to the rule announced in Haley. In that instance, the represented lawyer is, indeed, “representing a client,” notwithstanding that the represented lawyer has retained counsel.

D. Hearing: A hearing is not requested.

E. Expedited Consideration: Expedited consideration is not requested.

F. Supporting Material: Suggested Rule Amendment

¹Haley, 156 Wn.2d at 333 (quoting form RPC 4.2(a) (2005)). Former RPC 4.2, as quoted by the court in Haley, is slightly different from the rule as adopted by our court in 2006, to conform to the American Bar Association’s model rule. In 2006, the word “party” was replaced with the word “person” to make clear that the rule applies regardless of whether a proceeding before a tribunal is involved. Note that Haley was decided in 2006 and so the prior form of the rule would have been in effect for purposes of that case. The change should not affect the issue being addressed.

²Pinsky, 216 Conn. at 236; see also HTC Corp. v. Tech. Properties Ltd., 715 F. Supp. 2d 968, 972 (N.D. Cal. 2010) (lawyer principal in a tech company did not violate RPC 4.2 in communicating with persons known to be represented in the matter because he was not representing a client).

³ RPC 4.2 comment 4 in its entirety reads:

[Washington revision] This Rule does not prohibit communication with a person represented by a lawyer or an employee or agent of such a person, concerning matters outside the representation. For example, the existence of a controversy between a government agency and a private party, or between two organizations, does not prohibit a lawyer either from communicating with nonlawyer representatives of the other regarding a separate matter. Nor does this Rule preclude communication with a person represented by a lawyer who is seeking advice from a lawyer who is not otherwise representing a client in the matter. A lawyer may not make a communication prohibited by this Rule through the acts of another. See Rule 8.4(a). Parties to a matter may communicate directly with each other, and a lawyer is not prohibited from advising a client concerning a communication that the client is legally entitled to make. Also, a lawyer having independent justification or legal authorization for communicating with a represented person is permitted to do so.

⁴ Presumably, despite the use of the word “parties” in this comment, given the 2006 change made to the rule that has been addressed earlier, the comment encompasses not just “parties” but also “persons” who may not be parties to a formal adversarial proceeding.

⁵ Cal. RPC 2-100 discussion para. 2