Rule 4.3 Versus Rule 4.2

A lawyer who speaks for a client to someone on the other side of a matter works under one of two rules, and the person’s status picks which. Rule 4.3 governs dealings with “a person who is not represented by counsel,” and each of its three duties (no implied disinterest, correction of a misunderstanding about the lawyer’s role, and the limit on legal advice) assumes that the person has no lawyer.¹ Rule 4.2 governs the person who has one: “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.”²

The two rules treat the same conversation in opposite ways. Rule 4.3 leaves it open and polices the lawyer’s words; Rule 4.2 closes it unless the person’s own lawyer agrees. The sections below explain why, show that a represented person cannot reopen the conversation by agreeing to it, and then test two borderline cases: the person who says she has fired her lawyer, and the person who bought only limited help.

The Dividing Question

The dividing question is whether the person has a lawyer in the matter, and party status does not answer it. Rule 4.2 speaks of a “person” the lawyer knows to be represented “in the matter,” and the Model Rules substitute “person” for the older “party.”³ A represented witness is therefore as protected as a represented opponent. (Whether “person” also reaches the employees of an organizational party is a separate problem, taken up under Organizational Constituents below.)

A lawyer may talk with a person who has no lawyer, subject to limits on what the lawyer says. The lawyer may not state or imply disinterest, must make reasonable efforts to correct a misunderstanding of the lawyer’s role that the lawyer knows or reasonably should know exists, and may give no legal advice other than the advice to secure counsel when the person’s interests are or may be in conflict with the client’s.⁴

Rule 4.2 cannot rely on limits of that kind, because the harm it targets does not depend on anything false the lawyer says. Alone with a represented person, a lawyer might draw out a damaging admission, learn a fact or obtain a document the person would not yield with counsel present, win a concession or learn the person’s true position in a negotiation, learn the person’s strategy or privileged information, or weaken the person’s resolve by casting doubt on the strength of his position.⁵ Each harm depends on counsel’s absence. A lawyer could say nothing untrue about her own role and still obtain an admission the person would never make with counsel at his side. The cure is to require the agreement of the person’s lawyer, and the duties of Rule 4.3 would fit these facts poorly.

The same division governs a drafter. A drafter may not send a counter-proposal or a suggested revision directly to a represented party unless that party’s lawyer has consented. With an unrepresented party, the drafter must make sure the party understands that the drafter is not disinterested and represents only the client, and must take care not to give legal advice. The drafter may explain what contract provisions mean, but the better practice is to advise the party to retain a lawyer.⁶

A represented person’s eagerness to talk does not reopen the conversation. Comment 3 to Rule 4.2 states that “[t]he Rule applies even though the represented person initiates or consents to the communication.”⁸ Professor Carl Pierce reads the comment as a warning that lawyers “must silence the represented person who calls them no matter how badly that person wants to talk.”⁹ The represented person cannot waive the rule. Only her lawyer can, and that lawyer must be the sole source of any legitimate consent to ex parte communication with the client.¹⁰

The sole-source requirement closes a loophole. If the person’s own agreement counted, the lawyer who wanted the conversation could simply obtain that agreement, and the exception would swallow the rule. A violation costs the lawyer and the lawyer’s own client: discipline is possible, a court may disqualify the lawyer and the lawyer’s entire firm from continuing in the matter, and an agreement negotiated directly with the represented person may be voided.¹¹ Rule 4.3 needs no comparable consent mechanism, because contact with an unrepresented person is already permitted. Its limits on what the lawyer says apply whether or not the person is eager to talk.

Prior Representation

Rule 4.2 bars contact only with a person the lawyer “knows to be represented,” so a lawyer who knows the person once had counsel faces a question of knowledge. When the lawyer knows that the person has been represented in the matter and nothing clearly shows the representation has ended, the lawyer must verify its status before making contact, as by a simple telephone call to the person’s lawyer.¹³

The person’s own statement that she has fired her lawyer does not settle the question. A person is free to discharge a lawyer and proceed unrepresented. But if the statement is wrong, the opposing lawyer will have talked with a represented person on that person’s say-so alone, which Comment 3 does not permit. A single call to the former lawyer, the one source whose word counts, removes the risk.

Limited-Scope Clients

Unbundled legal services complicate the line. A lawyer may handle one task for a person who otherwise proceeds pro se, provided the person gives informed consent and the scope of the representation is clearly defined, as Rule 1.2(c) requires.¹⁵ The question for the no-contact rule is whether such a person counts as represented. A person receiving only limited representation should be considered unrepresented unless the opposing lawyer knows of, or has been given, a written notice of appearance or other written notice from the person’s lawyer.¹⁶ Several states write that notice requirement into their rule text, so a stem governed by local rules may state it outright; the Model Rule text quoted above is silent on notice.¹⁷

The notice requirement fits the knowledge element of the rule. The bar attaches only when the lawyer knows the person is represented in the matter, and an arrangement that covers a single task and is invisible to the opposing lawyer gives that lawyer nothing to know. Written notice from the person’s own lawyer is a reliable signal. It also lets the person use limited help without losing every direct dealing with the other side.

Hypothetical Illustration

A homeowner hires a lawyer under a limited-scope agreement solely to draft a demand letter to a contractor and handles everything else in the dispute himself. The contractor’s lawyer has received no notice of appearance and nothing else in writing, so the homeowner is treated as unrepresented. The contractor’s lawyer may speak with him under Rule 4.3: she says whom she represents, does not imply neutrality, and gives no advice other than the suggestion to consult counsel. Several weeks later the homeowner’s lawyer sends the contractor’s lawyer written notice of the representation. From that point the homeowner is treated as represented, and the contractor’s lawyer may not communicate with him about the subject of that representation without his lawyer’s consent.

Together these four parts yield a short sorting routine for any contact problem. The person’s status comes first, and every later step depends on it.

Exam Analysis Steps

Confirm that the lawyer is acting for a client in the matter, since both rules apply only to a lawyer who is representing a client.¹⁹
Ask whether the person has a lawyer in the matter and whether the contacting lawyer knows it. Party status does not decide the question.
If the person once had a lawyer and nothing clearly shows the representation has ended, verify its status with that lawyer before making contact.²⁰
If the person has only limited-scope help, look for the lawyer’s knowledge of it or written notice from the person’s lawyer; without either, treat the person as unrepresented.²¹
If the person is unrepresented, apply Rule 4.3: the lawyer may talk with the person but must not state or imply disinterest, must correct a misunderstanding of the lawyer’s role that the lawyer knows or reasonably should know exists, and must give no legal advice other than the advice to secure counsel where the person’s interests are or may be in conflict with the client’s.²²
If the person is represented and the lawyer knows it, treat communication about the subject of the representation as barred unless the person’s lawyer consents or law or a court order authorizes it. The person’s own initiative or consent does not count.²³

Errors at step two cost the most. A lawyer who treats a represented person under Rule 4.3 skips the one safeguard that matters, the consent of the person’s lawyer. A lawyer who applies Rule 4.2 to a mere bystander bars a conversation the client needs.