Ethics Opinion

Opinion No. 97-1

January 1997

Summary: An attorney representing herself in litigation may not communicate with the adverse party in the litigation when the attorney knows that the adverse party is represented by counsel in the litigation.

Facts: A lawyer is representing herself in litigation under circumstances where the lawyer knows that the adverse party is represented by counsel in the litigation. The lawyer inquires whether, given the fact that she is the client in the litigation, DR 7104 (A) (1) prohibits her from communicating with the opposing party directly rather than through the opposing party's counsel, without the consent of opposing counsel. DR 7104 (A) (1) provides:
(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.

Discussion: DR 7104(A)(1) forbids a lawyer to communicate with a party known to be represented by counsel, without opposing counsel's knowledge or consent. This inquiry poses the question whether that rule also applies where the lawyer desiring to communicate with the adverse party is appearing pro se that is, where the lawyer is also the client. There are situations where the Disciplinary Rules do not apply when a lawyer is also a client. In Borman v. Borman, 378 Mass. 775 (1979), the Supreme Judicial Court held that a lawyer's partners were not disqualified from representing him just because he was going to be a witness. The Court reasoned that there was no possibility of confusion of role, which is the reason for disqualification when a member of the law firm is also going to be a witness. In Borman, it was perfectly clear that the lawyer was going to be testifying in the role of a party.

The purpose of DR 7104(A)(1), however, suggests that it ought to apply to the current situation. The justification for DR 7104(A)(1) is to prevent a lawyer from using superior knowledge and skill to take advantage of a party through conversation out of the presence of the party's lawyer. That justification also exists when the lawyer is acting pro se. The lawyer is not just a lay person talking to a lay person. The same possibility of obtaining an unfair advantage exists. The Committee's judgment, therefore, is that the Supreme Judicial Court would interpret DR 7-104 (A)(1) to apply to lawyers representing themselves.

Permission to publish granted by the Board of Delegates on February 7, 1997. As stated in the Rules of the Committee on Professional Ethics, this advice is that of a committee without official governmental status.