MARYLAND STATE BAR ASSOCIATION, INC.
COMMITTEE ON ETHICS
ETHICS DOCKET NO. 2006-03
Whether Rule 4.2 allows a lawyer acting pro se to speak with a represented party over the objection of the party’s attorney and whether this same rule applies to an attorney licensed in another state who is not practicing law in Maryland but who is appearing pro se in a Maryland court?
Your inquiry dated July 25, 2005, has been considered by the Committee on Ethics of the Maryland State Bar Association, and I have been assigned to respond to you on behalf of the Committee.
In your inquiry you provide the following facts. You are a lawyer licensed to practice law in Virginia, but not in Maryland. You live in Maryland and you and your spouse are involved in a divorce that is in litigation. Your spouse is represented by an attorney who has notified you that under Rule 4.2 since “you are acting as counsel of your own in this case”, any “communications you have with [your spouse] must be limited to areas that do not involve the ongoing litigation.” As part of your inquiry, you point out that you believe settling domestic relations matters is encouraged and question why you should not be allowed to attempt to settle the matter with your spouse.
The issues you raise have been discussed at great length by the Committee as various members have strongly held opposing beliefs as to what should be the outcome and what follows is intended to be a consensus of the majority of the Committee and addresses some of the important conflicting concepts that were raised as the Committee reached this consensus.
Initially, the Committee concludes that a lawyer licensed in Maryland or practicing law in Maryland whether legally or illegally is prohibited by Rule 4.2 from communicating with a party opponent when the opponent is represented by counsel. The Rule was intended to prevent lawyers from taking advantage of persons not skilled in the practice and rules of law when the party opponent has legal representation.[1]
Rule 4.2(a) provides:
Except as provided in paragraph (c), in representing a client, a lawyer shall not communicate about the subject of the representation with a person who the lawyer knows is represented in the matter by another lawyer unless the lawyer has the consent of the other lawyer or is authorized by law or court order to do so.[2]
As one author has noted, the Rule is not artfully written and can be interpreted either to allow the communication or to prohibit it:
On its face, the reference in the Rule to a lawyer “representing a client” can be read to suggest a negative inference that it does not apply to communication by a lawyer who is acting pro se, or is represented by another lawyer, in a matter in which she is interested. The Connecticut Supreme Court has so held in a case in which a lawyer was proceeding pro se. Support for this conclusion can also be found in the drafter’s notes to the California no-contact rule that explain that the rule “does not prohibit a member who is also a party to a legal matter from directly or indirectly communicating on his or her own behalf with a represented party.” Similarly, the Restatement (Third) of the Law Governing Lawyers (the “Restatement”) provides that its “anti-contact” rule does not apply “when the lawyer is a party and represents no other client in the matter.”
Were this all the law on this issue, one might be comfortable with the Commission’s decision not to address the issue. Such, however, is not the case. Notwithstanding the Rule’s reference to a lawyer “representing a client,” courts and ethics committees in Illinois, Wyoming, Idaho, and the District of Columbia have held that the no-contact rule applies to self-represented lawyers. Nevada recently joined these states in holding that the no-contact precludes a pro se lawyer from contacting the other party without the consent of the other party’s lawyer, but interestingly refused to impose discipline because it thought that its no-contact rule was unconstitutionally vague with respect to its applicability to communication by a pro se lawyer. Also, both Oregon and Minnesota explicitly address this issue in their no-contact rules. Oregon clarifies that its no-contact rule applies to “a lawyer representing the lawyer’s own interest.” In an interesting hybrid approach, Minnesota provides that ” a party who is a lawyer may communicate directly with another party unless expressly instructed to avoid communication by the other lawyer, or unless the other party manifests a desire to communicate only through counsel.” While this initially exempts the pro se lawyer from the no-contact rule, it still allows the represented person or her lawyer to invoke the rule’s protection. [Footnotes omitted.]
Carl A. Pierce, VARIATIONS ON A BASIC THEME: REVISITING THE ABA’s REVISION OF MODEL RULE 4.2 (Part II), 70 Tenn. L. Rev. 321, 325-326 (2003).[3]
As explained by Mr. Pierce, there is authority to suggest that a lawyer, acting pro se, is not subject to the restrictions of what is sometimes known as the “anti-contact rule” contained in Rule 4.2. In that regard, the Restatement of Law (3d) makes a specific exception to the anti-contact rule when a lawyer is a party to a matter and represents no other client in the matter. Section 99(1) of the Restatement of Law (3d) provides:
§99. A Represented Nonclient-The General Anti-Contact Rule.
- A lawyer representing a client in a matter may not communicate about the subject of the representation with a nonclient whom the lawyer knows to be represented in the matter by another lawyer or with a representative of an organizational nonclient so represented as defined in § _100, unless:
- the communication is with a public officer or agency to the extent stated in § _101;
- the lawyer is a party and represents no other client in the matter;
- the communication is authorized by law;
- the communication reasonably responds to an emergency; or
- the other lawyer consents
Comment (e) to this section of the Restatement 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.” However, “a lawyer representing both a client and the lawyer’s own interests in the same matter is subject to the anti-contact rule of the Section.”
This exception to the anti-contact rule was considered by the Connecticut Supreme Court in Pinsky v. Statewide Grievance Commission, 216 Conn. 228, 578 A.2d 1075 (1990). In that case, a lawyer was sent an eviction notice by an employee of the lawyer’s landlord, a bank in which the lawyer’s office was located. The attorney sent a letter to the employee, who was the manager of the building, at the manager’s home address, even though the bank was represented by counsel. The letter expressed the attorney’s frustration with the eviction process, and threatened to sue the building manager. The Court explained that “the language of Rule 4.2, and the comments thereto, limit the restriction on communications with represented parties to those situations where the attorney is ‘representing a client.'” The Court determined that the plaintiff/attorney “was not ‘representing a client.'” The Court further explained that “the plaintiff’s letter was a communication between litigants and the plaintiff had a right to make such a communication because he was not representing a client.”
Citing Pinsky, the Idaho Supreme Court reached a different conclusion:
In the present case, we hold that a pro se lawyer/litigant does represent a client when representing himself or herself in a matter; thus, I.R.P.C. 4.2 applies to prevent the pro se attorney from directly contacting a represented opposing party.
Runsvold v. Idaho State Bar (in Re Supreme Court Review), 129 Idaho 419, 421,925 P.2d 1118, 1120 (Idaho 1996)
The Idaho court reasoned:
If Runsvold’s position that he must be treated only as a party and that his status as an attorney should be ignored is accepted, the intent of I.R.P.C. 4.2 would be frustrated. His ex-wife would lose “the protection a represented person has achieved by obtaining counsel,” and her attorney would lose the ability to control access to his client, a fundamental element of the attorney-client relationship. n2 We thus construe the phrase of Rule 4.2, “in representing a client” to include the situation in which an attorney is acting pro se because this interpretation better effectuates the purpose of Rule 4.2.
Runsvold v. Idaho State Bar (in Re Supreme Court Review), 129 Idaho 419, 421,925 P.2d 1118, 1120 (Idaho 1996). See, also: Sprauve v. Mastromonico, 86 F. Supp. 2d 519 (D.V.I. 1999) (“The plaintiff is an attorney whenever he appears before the Court, the public, or the mirror. See LRCi 83.2(b)(4)(B) (“An act or omission by an attorney admitted to practice before this court, individually or in concert with any other person or persons, which violates the applicable Rules of Professional Conduct . . . shall constitute misconduct and be grounds for discipline whether or not the act or omission occurred in the course of an attorney-client relationship.”)”).
We believe the opinions that prohibit a lawyer from having contact with a represented party opponent to be the most persuasive.
The difficulty the Committee has with the situation you pose rests with the fact that you are not a Maryland lawyer and are likely not practicing law in Maryland[4]. While the Maryland Rules of Professional Conduct clearly apply to foreign lawyers who are either practicing law legally in Maryland or engaging in the unauthorized practice of law in Maryland, the Committee cannot conclude that these Rules apply to lawyers from other jurisdictions who neither practice law in Maryland, nor hold themselves out to be practicing law. In determining what constitutes the practice of law in Maryland, you should be aware that the Court of Appeals is the sole arbiter of that question.
What constitutes the practice of law is a determination that, ultimately, this Court [the Court of Appeals] makes, see Public Serv. Comm’n v. Hahn Transp., Inc., 253 Md. 571, 583, 253 A.2d 845, 852 (1969); Lukas v. Bar Ass’n of Montgomery County, Inc., 35 Md. App. 442, 447, 371 A.2d 669, 672, cert. denied, 280 Md. 733 (1977), although some guidance has been provided by the General Assembly.
Attorney Grievance Comm’n of Md. v. Shaw, 354 Md. 636, 648 (Md. 1999). Indeed, the statutory definition for practicing law provides:
“Practice law” means to engage in any of the following activities:
- giving legal advice;
- representing another person before a unit of the State government or of a political subdivision; or
- performing any other service that the Court of Appeals defines as practicing law.
Business Occupations and Professions Article, §10-101. The following section describes the scope of the Title applicable to lawyers:
This title does not limit the right of:
- an individual to appear on the individual’s own behalf before a court or other unit of the State government;
- a title insurance company to examine and to insure titles to real property;
- a collection company to engage in the business of collecting or adjusting commercial claims; or
- a lawyer who is employed on a regular salaried basis by a corporation to represent the corporation before a court or other unit of the State government.
Business Occupations and Professions Article, §10-102. The same Article in §10-206 describes when a person must be admitted to the bar to “practice law” in Maryland:
- Except as otherwise provided by law, before an individual may practice law in the State, the individual shall:
- be admitted to the Bar; and
- meet any requirement that the Court of Appeals may set by rule.
- Exceptions — In general. — This section does not apply to:
- a person while representing a landlord in a summary ejectment proceeding in the District Court of Maryland;
- a person while representing a tenant in a summary ejectment proceeding in the District Court of Maryland if the person is:
* * *
- an insurance company while defending an insured through staff counsel;
- an officer of a corporation, * * *
or
- an individual who is authorized by a county employee to represent the employee at any step of the county’s grievance procedure.
- Same — Patent lawyers. — * * *
- Same — House counsel. — * * *
Business Occupations and Professions, §10-206. From these statutory provisions, a person who is not representing someone else in court is not likely to be “practicing law,” otherwise, §10-206 would not allow any pro se representation, as it provides that anyone “practicing law” in Maryland must be admitted subject to the Rules of the Court of Appeals or the delineated exceptions. The Court has noted its difficulty in finding a definition for the practice of law:
This Court has always found it difficult to craft an all encompassing definition of the “practice of law.” To determine what is the practice of law we must look at the facts of each case and determine whether they “‘”fall[] within the fair intendment of the term.”‘” * * *
To determine whether an individual has engaged in the practice of law, the focus of the inquiry should “be on whether the activity in question required legal knowledge and skill in order to apply legal principles and precedent.” In re Discipio, 163 Ill. 2d 515, 645 N.E.2d 906, 910, 206 Ill. Dec. 654 (1994); Louisiana State Bar Ass’n v. Edwins, 540 So. 2d 294, 299 (La. 1989) (“Functionally, the practice of law relates to the rendition of services for others that call for the professional judgment of a lawyer.”). “Where trial work is not involved but the preparation of legal documents, their interpretation, the giving of legal advice, or the application of legal principles to problems of any complexity, is involved, these activities are still the practice of law.”Lukas v. Bar Ass’n of Montgomery County, 35 Md. App. 442, 448, 371 A.2d 669, 673, cert. denied, 280 Md. 733 (1977) (quoting F.T. vom Baur, Administrative Agencies and Unauthorized Practice of Law, 48 A.B.A. J. 715, 716 (1962)) .
Attorney Grievance Comm’n v. Hallmon, 343 Md. 390, 397-398 (Md. 1996). Although not conclusive to the question, the Committee notes that in citing the Louisiana case the Court refers to its holding that the practice of law involves “rendition of services for others.”
Finally, the Rules, Rule 8.5, give some guidance regarding the disciplinary authority of the Court over out-of-state lawyers:
- Disciplinary Authority. (1) A lawyer admitted by the Court of Appeals to practice in this State is subject to the disciplinary authority of this State, regardless of where the lawyer’s conduct occurs.
(2) A lawyer not admitted to practice in this State is also subject to the disciplinary authority of this State if the lawyer.
(i) provides or offers to provide any legal services in this State,.
(ii) holds himself or herself out as practicing law in this State, or
(iii) has an obligation to supervise or control another lawyer practicing law in this State whose conduct constitutes a violation of these Rules.
(3) A lawyer may be subject to the disciplinary authority of both this State and another jurisdiction for the same conduct.
Md. Rule 8.5. Based on your description of the facts, you do not appear to be holding yourself out as practicing law in this State, you do not appear to be providing legal services in this state, and you are not supervising another lawyer in this State. Thus, the consensus view is that under Rule 8.5 any discipline to which you may be subject would be in the state of your licensure, not in Maryland.
Unfortunately, the discussion does not end here. Because counsel for a represented party in a matter in litigation has asked that you not communicate with that lawyer’s client about matters in litigation, even though the person is your spouse, you may be engaging in conduct detrimental to the administration of justice were you to violate that request.[5] Accordingly, the Committee concludes that it would be prudent to seek an order of court addressing whether you may have communications with your spouse against the wishes of your spouse’s lawyer concerning matters that are the subject of your litigation. This conclusion comports with the Comments to Rule 4.2:
A lawyer who is uncertain whether a communication with a represented person is permissible may seek a court order in exceptional circumstances. For example, when a represented criminal defendant expresses a desire to speak to the prosecutor without the knowledge of the defendant’s lawyer, the prosecutor may seek a court order appointing substitute counsel to represent the defendant with respect to the communication.
Md. Rule 4.2, Comment 4.
Accordingly, a consensus of a majority of the committee concludes that the Maryland Rules of Professional Conduct do not apply to your conduct based on the facts as you have described them, but that it would be prudent for you to seek an order of Court allowing you to communicate with your represented spouse over the spouse’s lawyer’s objections concerning matters that are the subject of the litigation.
Opinions of the Committee may be obtained from the Committee’s website: www.msba.org.
We trust the foregoing is responsive to your inquiry.
[1] The first Comment to Rule 4.2 provides:
[1] 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 the lawyer-client relationship, and the uncounseled disclosure of information relating to the representation.
[2] The exception in subsection (c), involves communications with government officials and does not apply to your situation.
[3] See also: Stephen J. Langs, LEGAL ETHICS – The Question of Ex Parte Communications and Pro Se Lawyers Under Model Rule 4.2 – Hey, Can We Talk? 19 W. New Eng. L. Rev. 421 (1997). In this Note, the author offers as a solution to the ambiguity created in pro se matters by Rule 4.2 that there be a rebuttable presumption that the pro se attorney violates Rule 4.2 by communicating with a represented opponent.
[4] The question of whether you are practicing law in Maryland is a legal one which the Committees rules prohibit it from answering.
[5] For the reasons previously discussed, Rule 8.4 and its prohibition against engaging in acts that are detrimental to the administration of justice does not apply to persons who are neither practicing law, nor holding themselves out as practicing law in Maryland. Nevertheless, the court’s inherent powers to discipline through contempt those who disrupt its proceedings caution that you refrain from attempting to communicate with your represented spouse in violation of your spouse’s lawyer’s direction to you.