Ethics Hotline & Opinions

ETHICS DOCKET NO. 2002-17

MARYLAND STATE BAR ASSOCIATION, INC.

COMMITTEE ON ETHICS

ETHICS DOCKET NO. 2002-17

Propriety of mailing notice of default and draft complaint to unrepresented party

 

You have inquired as to whether it is permissible for an attorney to send a notice of default under a lease and a draft of a complaint for breach of that lease to a party to a lease who is not represented by counsel. Your intention in sending the communication in this form is to induce that party into compliance with the terms of the lease.

Rule 4.3, which primarily controls your inquiry, states as follows:

In dealing on behalf of a client with a party who is not represented by counsel, a lawyer shall not state or imply that the lawyer is disinterested. When the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer's role in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding.

Permission to communicate with an unrepresented adverse party is thus implicit in the Rule's admonition that in so doing a lawyer must not state or imply that she/he is disinterested. The commentary to Rule 4.3 also implies that it is appropriate to so communicate and indicates that when so doing, the only advice a lawyer may give to an unrepresented party is to secure her/his own counsel with respect to the matter at issue. This committee has previously opined that even though the prohibition against giving any advice to an unrepresented party other than to secure counsel appears in the commentary, and not in the Rule itself, that prohibition nevertheless illustrates the clear meaning of the Rule. See Ethics Opinion 90-11. Finally, Rule 4.1 requires that when representing a client, a lawyer's statements to third persons must be truthful. See § 103, Restatement of the Law Governing Lawyers (2000) for a detailed discussion of the issues implicated by Rules 4.1 and 4.3.

Since your communications with the unrepresented party to the lease are nothing more than a transmission of your client's position that there has been a breach by that party for which your client intends to sue if that party fails to take steps to comply therewith, there is nothing improper in communicating that information to the unrepresented party, provided Rules 4.1 and 4.3 are adhered to.

 

REFERENCES: Restatement of the Law Governing Lawyers (2000), § 103; Opinion No. 90-11; Rules of Professional Conduct 4.1 and 4.3

 

DISCLAIMER: Opinions of the Maryland State Bar Association (MSBA) Ethics Committee are an uncompensated service of the MSBA. This Committee’s opinions are not binding on the Maryland Court of Appeals, Maryland Attorney Grievance Commission, MSBA or this Committee. The reader is advised that subsequent judicial opinions, revisions to the rules of professional conduct, and future opinions of this Committee may render the Opinions stated herein outdated. As such, the Committee’s opinions are advisory only and neither the Committee nor the MSBA assumes any liability whatsoever with respect thereto. Accordingly, reliance upon the opinions of this Committee is solely at the risk of the user.