Formal Opinion 502: The Majority and Dissent
Two members of the committee dissented. They agreed that pro se lawyers should be prohibited from contacting represented parties, but argued that the language of Rule 4.2 did not impose such a prohibition. Specifically, the dissenters focused on the introductory language of Rule 4.2, which states that the Rule applies only when a lawyer is “representing a client”. The dissenters maintained that the majority opinion violated the “surplusage canon”, which requires that every word and phrase in a legal instrument be given effect, when possible.
Formal Opinion 502’s majority opinion does not ignore the “in representing a client” verbiage, but asserts that a pro se lawyer is, in fact, his or her own “client.” For those who do not find this characterization of a pro se lawyer to be entirely satisfactory, Formal Opinion 502’s conclusion evokes one of the broader issues of legal philosophy of this era: What to do when the apparent policy underlying a statute, rule, or even a constitutional provision, does not necessarily fully align with a strict construction of that provision? One approach, suggested by the dissenters in Formal Opinion 502, is to amend the provision. Oregon for example, adopted a modified version of Model Rule 4.2, which states that the no-contact rule applies when the lawyer is “representing a client or the lawyer’s own interests”.
Reconciling the Rule with Reality
Formal Opinion 502, and its dissent, cite ample authority supporting either side of the argument. However, published dissents in ethics opinions, which are rare, pose a problem for those who look to such opinions for guidance. Should a lawyer seeking ethics guidance from an opinion issued by a committee that, presumably, comprises members having comparable expertise in legal ethics, necessarily adopt the majority view, simply because it commanded a majority of votes? Or, absent controlling authority in their own jurisdiction, are lawyers expected to independently assess the reasoning underlying the conflicting opinions of the presumed experts and adopt the conclusion that they think makes most sense, or, perhaps, best serves their ends?
A lawyer does not have to be an ethics maven to recognize that the most cautious course is usually the best course. This is particularly true because the Rules of Professional Conduct do not impose a duty of “zealous representation.” Particularly when a lawyer is acting solely in their own personal interests, there should rarely, if ever, be a compelling reason to attempt to communicate with a represented party regarding the subject of the representation without first obtaining opposing counsel’s consent. Therefore, notwithstanding the language-parsing debate among courts and ethics experts, lawyers are best served to trust instincts ingrained since law school, and steer well clear of Rule 4.2’s “third rail.”