By Mary F. Andreoni, ARDC Ethics Education Senior Counsel
Rule 4.2, commonly referred to as the “no contact” rule, an ethics rule that seemingly does not attract a lot of attention, was the subject of two recent ABA formal ethics opinions. The first, ABA Formal Opinion 502 Communication with a Represented Person by a Pro Se Lawyer (Sept. 28, 2022) looked at the question of whether the prohibition of communication with a represented person under Rule 4.2 applies in the context of a lawyer engaged in self-representation. The second, ABA Formal Opinion 503 “Reply All” in Electronic Communications (Nov. 2, 2022) considered whether consent to communicate with a represented client is given, albeit implied, when the lawyer includes the lawyer’s client in an email communication to opposing counsel.
Every state has some form of Rule 4.2 and Illinois’ rule is identical to the ABA Model Rule and most of its commentary. [1] ABA Model (and Illinois) Rule 4.2 Communication with Person Represented by Counsel provides “[i]n 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.”
The underlying policy reasons of the “no contact” rule are set forth in Comment [1] to Rule 4.2:
This Rule contributes to the proper functioning of the legal system by protecting a person who has chosen to be represented by a lawyer in a matter against possible overreaching by other lawyers who are participating in the matter, interference by those lawyers with a client-lawyer relationship and the uncounseled disclosure of information relating to their representation.
How the “No Contact” Rule Applies to Pro Se Lawyers:
ABA Formal Op. 502 Communication with a Represented Person by a Pro Se Lawyer
Can a lawyer who is pro se in a legal matter communicate directly with a represented adverse party concerning the matter without the consent of the adverse party’s lawyer? According to ABA Formal Opinion 502 Communication with a Represented Person by a Pro Se Lawyer (Sept. 28, 2022), the answer is no.
While Rule 4.2 does not specifically state whether it applies to a pro se lawyer, the majority[2] of the committee concluded that a pro se lawyer is “representing a client” (themselves) for purposes of the Rule and therefore barred from initiating such communications without first obtaining
[1] The comments to ILRPC 4.2 were amended in June 2013 to include representation by counsel in a limited scope engagement under ILRPC 1.2(c).
[2] Two of the 10 members of the standing committee offered a written dissent to ABA Formal Opinion 502 stating that while they agree that Rule 4.2 is not clear the better course is to amend the rule, citing to Oregon which adopted a modified version of Model Rule 4.2, stating that the no-contact rule applies when the lawyer is “representing a client or the lawyer’s own interests”.