Rules of Professional Conduct

4. Transactions with Persons Other Than Clients

ER 4.3.     Dealing with Unrepresented Person

In dealing on behalf of a client with a person who is not represented by counsel, a lawyer shall not state or imply that the lawyer is disinterested.  When the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer's role in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding.  The lawyer shall not give legal advice to an unrepresented person, other than the advice to secure counsel, if the lawyer knows or reasonably should know that the interests of such a person are or have a reasonable possibility of being in conflict with the interests of the client. 

Comment

[1] An unrepresented person, particularly one not experienced in dealing with legal matters, might assume that a lawyer is disinterested in loyalties or is a disinterested authority on the law even when the lawyer represents a client.  In order to avoid a misunderstanding, a lawyer will typically need to identify the lawyer's client and, where necessary, explain that the client has interests opposed to those of the unrepresented person.  For misunderstandings that sometimes arise when a lawyer for an organization deals with an unrepresented constituent, see ER 1.13(d).

[2] The Rule distinguishes between situations involving unrepresented persons whose interests may be adverse to those of the lawyer's client and those in which the person's interests are not in conflict with the client's.  In the former situation, the possibility that the lawyer will compromise the unrepresented person's interests is so great that the Rule prohibits the giving of any advice, apart from the advice to obtain counsel.  Whether a lawyer is giving impermissible advice may depend on the experience and sophistication of the unrepresented person, as well as the setting in which the behavior and comments occur.  This Rule does not prohibit a lawyer from negotiating the terms of a transaction or settling a dispute with an unrepresented person.  So long as the lawyer has explained that the lawyer represents an adverse party and is not representing the person, the lawyer may inform the person of the terms on which the lawyer's client will enter into an agreement or settle a matter, prepare documents that require the person's signature and explain the lawyer's own view of the meaning of the document or the lawyer's view of the underlying legal obligations.

Comment [2013 Amendment]


[3] A person to whom limited-scope representation is being provided or has been
provided in accordance with ER 1.2(c) is considered to be unrepresented for purposes of
this Rule unless the opposing party or lawyer knows of the limited-scope representation
and the identity of the lawyer providing limited representation. With the consent of the
client, a lawyer providing limited-scope representation should consider informing the
opposing party or lawyer of the limited-scope representation with instructions as to when
opposing counsel may communicate directly with the client. Such instructions may
include, for example, whom the opposing counsel should contact on specific matters, to
whom and where opposing counsel should send pleadings, correspondence and other
notices, and whether the lawyer performing limited-scope services is authorized to accept
service on the client’s behalf.