August 2, 1988
A lawyer proceeding pro se in a lawsuit may not contact a party represented by counsel for the purpose of discussing settlement unless the lawyer representing that party agrees or the pro se lawyer is authorized by law to do so.
A lawyer who is represented by counsel in a lawsuit may not contact a party represented by counsel for purposes of discussing settlement unless the lawyer representing the party consents or there is legal authorization for the contact.
A lawyer proceeding pro se in a lawsuit may contact unrepresented parties directly provided that the requirements of MCPR DR 7-104(A)(2) are met.
References: MCPR DR 7-104(A)(1), DR 7-104(A)(2); MRPC 4.2, 4.3, 8.4(a); CI-356, CI-390, CI-557, CI-768, CI-872; Op 182; In Re Heider, 341 P2d 1107 (Ore 1959); Shalant v. State Bar of California, 658 P2d 737 (Cal 1983). CI-920 is distinguished.
A lawyer is one of the defendants in a lawsuit in which there are numerous plaintiffs. Three plaintiffs who named the lawyer in their complaint were originally presented by one counsel. That counsel still represents one plaintiff but the remaining plaintiffs are unrepresented. The lawyer, who is proceeding pro se, asks:
- May the lawyer, appearing pro se, negotiate a settlement directly with the plaintiff represented by counsel?
- May the lawyer negotiate a settlement directly with the plaintiff represented by counsel, if the lawyer retains counsel in the matter?
- May the lawyer, appearing pro se, negotiate directly with the unrepresented plaintiffs?
MCPR DR 7-104(A)(1) states:
"(A) During the course of his representation of a client a lawyer shall not:
"(1) Communicate or cause another to communicate on the subject of the representation with a party he knows to be represented by a lawyer in that matter unless he has the prior consent of the lawyer representing such other party or is authorized by law to do so . . . ."
A number of ethics opinions have interpreted this rule or its predecessor. Op 182, in an accident case a lawyer may not interview a represented party; CI-356, in a paternity case counsel for the defendant may not contact the child's mother without the prosecutor's consent; CI-390, copunsel for plaintiff may not contact the defendant's insurance company without approval of defense counsel; CI-557, the amount of a mediation award may not be communicated to the opposing party without consent of the party's attorney; CI-768, an attorney who represents one plaintiff may not contact another plaintiff without consent of the other plaintiff's attorney; CI-892, a prosecutor may not relay plea offers to a represented defendant even if the prosecutor believes that defense counsel is not relaying those offers to the defendant.
The Michigan Rules of Professional Conduct [MRPC] become effective October 1, 1988. MRPC 4.2 states:
"In representing a client, a lawyer shall not communicate about the subject of the representation with a party whom the lawyer knows to be represented in the matter by another lawyer, unless the lawyer has the consent of the other lawyer or is authorized by law to do so."
One rationale for both MRPC 4.2 and MCPR DR 7-104(A)(1) is that the contacted client may make unwise voluntary statements (in contrast to those compiled under legal process). Hazard and Hodes, The Law of Lawyering: A Handbook On the Model Rules of Professional Conduct, Rule 4.2, pages 434-435. Another reason for these provisions is that the lawyer may use presumably more refined negotiating skills to the disadvantage of the nonlawyer. Furthermore, one hires a lawyer in part to negotiate on one's behalf, and thereby insulate oneself from the legal process. With regard to the policy behind the rule, the American Bar Association's Annotated Model Rules of Professional Conduct, Rule 4.2, page 268 states:
"Rule 4.2 is intended to preserve the integrity of the client-lawyer relationship by protecting the represented party from the superior knowledge and skill of the opposing lawyer."
In the situation in which a lawyer is acting pro se, the rationale supporting MRPC 4.2 and MCPR DR 7-104(A)(1) does not change. The lawyer contacting the represented party may use superior negotiating and interrogating skills to the disadvantage of the nonlawyer.
In Re Heider, 341 P2d 1107 (Ore 1959), was an appeal from a recommendation of the Board of Governors of the Oregon State Bar to disbar Heider. One of the charges brought against Heider was that Heider communicated with an adverse party whom Heider knew was represented by counsel. The party with whom Heider communicated was a personal debtor of Heider, but the court did not let Heider excuse that behavior by the assertion that Heider was dealing with the party as a businessman and not as a lawyer. The court stated:
"We may say we are not impressed with petitioner's assertion suggestive of a dual personality; the one a man of business and finance, the other, and apparently a secondary concept, a lawyer. How it may be argued that in the capacity of businessman he may indulge in practices generally condemned with reference to attorney and client relationships, when the circumstances show such intimate relationship as to make the two practically inseparable, we do not know." 342 P2d 1107, 1118.
The Heider court's logic in refusing to accept the dual capacity (i.e., businessman/lawyer) excuse is equally applicable to the fact situation before this committee. The dual capacity of client and lawyer does not excuse contact with a represented party. Therefore, pursuant to either MCPR DR 7-104(A)(1) or MRPC 4.2 a lawyer proceeding pro se may not contact another party who is represented without first obtaining the permission of the other lawyer or being otherwise authorized by law to do so.
The reasons for MCPR DR 7-104(A)(1) and for MRPC 4.2 do not change if a lawyer hires another lawyer to represent the lawyer. The superior knowledge and skill levels are still present. The educational level does not diminish because one changes hats from lawyer to client.
Another rule is applicable in conjunction with MRPC 4.2 in this situation MRPC 8.4(a) states:
"It is professional misconduct for a lawyer to:
"(a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another; . . . ." Emphasis added.
MCPR DR 7-104(A)(1) similarly forbids a lawyer from "causing another to communicate" with another party without the consent of the party's counsel.
MCPR DR 1-102(A)(2) and (4) are also applicable:
"A lawyer shall not:
". . .
"(2) Circumvent a Disciplinary Rule through actions of another.
". . .
"(4) Engage in conduct involving dishonesty, fraud, deceit, or misrepresentation."
Under these provisions the lawyer may not retain a lawyer to circumvent MCPR DR 7-104(A)(1) and MRPC 4.2. Similarly the lawyer retained may not assist the lawyer in contacting a represented party.
In Shalant v. State Bar of California, 658 P2d 737 (Cal 1983), the petitioner and the petitioner's former client were co-defendants in a suit. The former client was represented by new counsel, but petitioner still represented the former client's father in a separate action. Through the father, petitioner asked the former client to contact the former client to discuss settlement. The court found that the petitioner willfully, though indirectly, communicated with a party without permission of the party's counsel. The Shalant case shows that even indirect contact with a represented party is prohibited.
Under MCPR DR 7-104(A)(1) the lawyer's retained counsel would be obligated to counsel the lawyer against contacting a represented party. The retained lawyer could not assist the client/lawyer in making this contact.
Despite the language of the Comment to MRPC 4.2, which states that parties to a matter may communicate directly with each other, a lawyer represented by counsel may not communicate directly with a party who is represented by counsel, without permission of the party's lawyer. The rationale does not change when a lawyer retains counsel.
Therefore, a lawyer/party who is represented by counsel may not contact a represented party without the permission of that party's lawyer.
CI-920 addressed whether a lawyer may provide a domestic relations client a copy of a draft settlement proposal when the lawyer knows the client may discuss the document with a spouse represented by counsel. The opinion distinguishes the drafting of a settlement proposal for discussion with a client from obtaining signatures to a final document, stating:
"Domestic relations cases usually involve the custody and visitation of minor children and during the litigation both parties often continue to occupy the marital home. Lawyers assisting people at such times should encourage the parties toward resolution of their disputes. This may mean that, at times, both counsel are not involved in the communication. Under no circumstances should an attorney encourage his client to take action which might tend to interfere with the lawyer-client relationship of the adverse party."
Because of the nature of domestic relations actions the lawyer may draft a settlement proposal which the client may use for settlement discussion. CI-920, is not applicable outside of the situation in which the litigation revolves around a personal relationship, which the parties are in a better position to resolve, e.g., personal service contracts, will contests and intra-familial tort actions.
A lawyer is not prohibited from contacting an unrepresented party directly, provided that the lawyer observes certain restrictions. MCPR DR 7-104(A)(2) states:
"(A) During the course of his representation of a client a lawyer shall not:
". . .
"(2) Give advice to a person who is not represented by a lawyer, other than the advice to secure counsel, if the interests of such person are or have a reasonable possibility of being in conflict with the interests of his client."
A lawyer proceeding pro se may contact other parties to litigation who are not represented by counsel so long as the requirements of MCPR DR 7-104(A)(2) are met. In accord, MRPC 4.3.