A Renewed Emphasis on ABA Model Rule 4.2

ABA Model Rule 4.2 is seeing an apparent renewed emphasis in 2022. Rule 4.2—commonly known as the “no contact rule”—provides: “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.” The stated purpose behind this Rule is “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 client-lawyer relationship and the uncounselled disclosure of information relating to the representation.” ABA Model Rule 4.2, cmt. 1.

This renewed emphasis on Rule 4.2 is evidenced by the ABA Standing Committee on Ethics and Professional Responsibility issuing two consecutive ABA Formal Ethics Opinions in quick succession addressing different aspects of the lawyer’s ethical obligations under the “no contact rule.”

Application of the "No Contact Rule" to the Self-Representing Lawyer

On September 28, 2022, the Committee issued ABA Formal Opinion 502 addressing “Communication with a Represented Person by a Pro Se Lawyer.” Early on, the Opinion recognized that Rule 4.2 does not prohibit parties from communicating directly with one another. See ABA Formal Op. 502, at 2-3, citing ABA Model Rule 4.2, cmt. 4. In fact, in a previous ABA Formal Ethics Opinion, the Committee opined that it is not a violation of Rule 4.2 to help coach a client about communications that the client can have with a represented opposing party. See ABA Formal Op. 11-461 (“Advising Clients Regarding Direct Contacts with Represented Persons”) (Aug. 4, 2011).

However, in Formal Opinion 502, a majority of the Committee concluded—based on both the text of Rule 4.2 itself and the purposes behind the Rule—that a lawyer proceeding in a matter pro se is “representing a client,” namely himself or herself, and therefore, the “no contact rule” applies. Specifically, the majority stated that:

When a lawyer is self-representing, i.e., pro se, that lawyer may wish to communicate directly with another represented person about the subject of the representation and may believe that, because they are not representing another in the matter, the prohibition of Model Rule 4.2 does not apply. In fact, both the language of the Rule and its established purposes support the conclusion that the Rule applies to a pro se lawyer because pro se individuals represent themselves and lawyers are no exception to this principle.

ABA Formal Op. 502, at 1.

In reaching this conclusion, the majority admitted that “when a lawyer is acting pro se, application of Model Rule 4.2 is less straightforward” and that in applying Rule 4.2 “to pro se lawyers, the scope of the rule is less clear.” ABA Formal Op. 502, at 2 and 3. Despite reliance on the principles behind Rule 4.2, the majority also acknowledged: “This opinion does not address the related question of applicability of Rule 4.2 when a lawyer is represented by another lawyer and the represented lawyer wishes to communicate with another represented person about the matter.” Id., at 3, n. 10. The majority even recognized that its stance about the language “in representing a client” applying to the self-representing lawyer may create an ambiguity when applied to a pro se lawyer and that its stance is contrary to that of the Restatement of the Law Governing Lawyers. Id., at 5 and 5, n. 25.

In a somewhat unusual move, not only was there dissent within the Committee on this issue, but the Committee published the dissenting opinion. From the outset, the dissenting minority disagreed with the notion that the language of Rule 4.2 itself supports the majority’s conclusion: “While the purpose of the rule would clearly be served by extending it to self-represented lawyers, its language clearly prohibits such application.” ABA Formal Op. 502, dissenting op. at 6–7 (italics in original). The dissent further explained:

But it is, I hope, unusual for a committee to nullify plain language through interpretation, especially when the committee has jurisdiction to propose rule amendments.

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Applying Rule 4.2 to pro se lawyers is supported by compelling policy arguments. It is not the result I object to, it is the mode of rule construction that I cannot endorse. Self-representation is simply not “representing a client,” nor will an average or even sophisticated reader of these words equate the two situations. Rather, this is an “ingenious bit of legal fiction.” Further, this approach to construing the rule’s language renders the phrase “in representing a client” surplusage, contrary to a basic canon of construction.

It is also simply wrong to perpetuate language that was clear but has been made misleading by opinions effectively reading that language out of the rule. When an attorney consults the rule, it is highly unlikely that the phrase “in representing a client” will be considered to include self-representation. If the attorney goes further and consults Comment [4], the Comment will assure the attorney that, “Parties to a matter may communicate directly with each other.” Given this apparent clarity, what will tip off the attorney that further research is required? The lesson here must be that nothing is clear. Clear text cannot be relied upon but may only be understood by reading ethics opinions and discipline decisions. Does the text mean what it actually says, as it does in Connecticut, Kansas, and Texas? Or, does it mean what we wish it said, as several other states have declared?

ABA Formal Op. 502, dissenting op. at 7–8 (internal citations omitted) (italics in original).

Indeed, if Rule 4.2 is to be applied to a lawyer representing themself, that applicability is certainly less than clear from the language of the Rule or its Commentary. As the dissent suggests, if this is how the Rule is to be applied, then perhaps the Rule itself should be revised through the Rule amendment process to provide the clarity that the majority appears to see but that others do not. Otherwise, as it stands, ABA Formal Opinion 502 appears to set an ethical trap for the unsuspecting pro se lawyer who does not think they are “representing a client” when representing themself.

Rule 4.2 and the "Reply All" Email

On November 2, 2022, the Committee subsequently issued ABA Formal Opinion 503 addressing the issue of “‘Reply All’ in Electronic Communications.” Formal Opinion 503 addresses the ethical propriety of an opposing counsel recipient (“receiving counsel”) sending a “reply all” email when the originating attorney (“sending counsel”) copies their client on the original email. The Opinion addresses the extent to which the sending counsel, by copying their client, has impliedly authorized the recipient counsel to respond to all recipients of the original email (including the sending counsel’s client).

While acknowledging that a number of jurisdictions take the position that the sending counsel has not impliedly consented to a “reply all” response under these circumstances, the Committee concluded: “given the nature of the lawyer-initiated group electronic communication, a sending lawyer impliedly consents to receiving counsel’s ‘reply all’ response that includes the sending lawyer’s client, subject to certain exceptions [discussed therein].” ABA Formal Op. 503, at 2. The Committee supported its conclusion by noting that consent under Rule 4.2 need not be express but may be implied. The Committee also placed responsibility on the sending counsel for initially including their client on the communication, noting that such placement of responsibility on the sending counsel was fairer, especially if the list of recipients in the group email is large and especially where the sending counsel can avoid this issue altogether (and likewise avoid the possibility of the client also sending a “reply all” which may disclose “sensitive or compromising information”) by forwarding the client the original email in a separate email solely between the client and the lawyer. Id., at 3–4. In fact, the Committee itself noted that forwarding the email to the client—as opposed to “bcc’ing” a client—may be safer “because in certain email systems, the client’s reply all to that email would still reach the receiving counsel.” Id., at 4, n. 14.

Formal Opinion 503’s focus on the sending counsel’s responsibility, as opposed to that of the receiving counsel, is consistent with the 2002 amendment to ABA Model Rule 4.4(b) with respect to the duties of the unintended recipient of information relating to the representation of a client. Prior to 2002, the unintended recipient’s ethical obligations were to refrain from reading the document, notify the sender, and abide by the sender’s instructions. The 2022 amendment of Rule 4.4 limited the unintended recipient’s ethical obligation to only that of notifying the sender. See ABA Model Rule 4.4(b); ABA Formal Op. 05-437 (“Inadvertent Disclosure of Confidential Information: Withdraw of Formal Op. 92-368 (Nov. 10, 1992)”) (Oct. 1, 2005). As such, greater responsibility is placed on the sender to take care not to misdirect the communications in the first place.

As to the exceptions to this implied authorization to “reply all,” Formal Opinion 503 noted that an express oral or prominent written instruction from the sending counsel to receiving counsel that receiving counsel is not to send a “reply all” email that includes the client will eliminate any suggestion that the sending counsel has impliedly authorized such direct communication with the client. See ABA Formal Op. 503, at 4. The Opinion also noted that this implicit authorization for the receiving counsel to “reply all” should be limited to email and other group electronic communications. See id., at 4. In other words, the same implicit authority is not present if the sending counsel carbon copies their client on a traditional paper letter.

And again, some jurisdictions disagree with the position taken by ABA Formal Op. 503 with respect to the sending counsel impliedly authorizing the receiving counsel’s direct communication with the carbon copied client via a “reply all” response email. For example, Kentucky Bar Association Ethics Opinion E-442 (Nov. 17, 2017) took the opposite approach: “A lawyer who, without consent, takes advantage of ‘reply all’ to correspond directly with a represented party violates Rule 4.2. Further, showing a ‘cc’ to the client on an email, without more, cannot reasonably be regarded as consent to communicate directly with the client.” See KBA E-442, at 1–2. The KBA Opinion also cautioned that the sending counsel, without the client’s express or implied consent, may be violating Rule 1.6’s duty of confidentiality when copying the client because doing so provides the following information to the receiving counsel: “1) the identity of the client; 2) the client received the email including attachments, and 3) in the case of a corporate client, the individuals the lawyer believes are connected to the matters and the corporate client’s decision makers.” Id., at 2.

Conclusion

Perhaps the lesson behind both of these ABA Formal Ethics Opinions addressing Rule 4.2 is this: it has always been true that a lawyer should pause whenever wanting to communicate directly with a person represented by counsel. But there are grey areas in the application of this Rule, and different jurisdictions interpret the Rule differently. Some jurisdictions would follow ABA Formal Opinion 502 and apply Rule 4.2 to self-representing lawyers, while other jurisdictions would not. Some jurisdictions would follow ABA Formal Opinion 503 and maintain that, generally speaking, a sending counsel who copies their client on an email has impliedly authorized the receiving counsel to send a “reply all” response email, while other jurisdictions would not. As such, when a lawyer finds themself in these grey areas, it is important to determine how the applicable jurisdiction applies Rule 4.2. Finally, if all else fails, the lawyer can always attempt to secure the explicit consent of opposing counsel to allow for direct communication with opposing counsel’s client, with such consent preferably confirmed in writing to eliminate any confusion.