May 18, 2022 – Does the no contact rule apply when I’m both the client and the lawyer?

Question

I am bringing a small claims action in connection with a property I own, and this matter is unrelated to my law practice.

I am comfortable handling the matter without hiring my own lawyer, so I am acting on my own, but the opposing party is represented. The opposing party left a message on my voicemail stating that they wanted to discuss the matter and asking for a return call. I was about to return the call when I hesitated, worried that it might be improper.

Does the no contact rule prevent me from communicating with a represented party when I am acting pro se in a personal matter?

Answer

SCR 20:4.2 states, in relevant part:

(a) 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.

Since the lawyer clearly knows that the opposing party is represented in the matter, the question is whether the lawyer is “representing a client” as that phrase in used in the rule.

Wisconsin Ethics Opinion EI-17-01 addresses this in the context of a former lawyer wishing to contact the former client directly about the matter when the former client is represented by new counsel:

Considering this raises a threshold question: is the discharged lawyer “representing a client” within the meaning of SCR 20:4.2 when that lawyer contacts a former client regarding the representation? Courts and ethics committees that have considered this question have overwhelmingly answered it in the affirmative on the theory that lawyers are, in effect, representing themselves. In Formal Opinion 2011-1 (2011), the Ethics Committee of the New York City Bar provided an excellent review of authorities:

Rule 4.2(a) begins with phrase “[i]n representing a client,” which appears to limit the scope of the rule. The weight of authority, however, is that a lawyer may not contact a represented person even when the lawyer is acting pro se and thus not "representing a client" at the time of contact. As explained by the court in In re Discipline of Schaefer, 25 P.3d 191, 199 (Nev. 2001), “[t]he lawyer still has an advantage over the average layperson, and the integrity of the relationship between the represented person and counsel is not entitled to less protection merely because the lawyer is appearing pro se.” Accord In re Disciplinary Proceeding Against Haley, 126 P.3d 1262, 1269 (Wash. 2006); Runsvold v. Idaho State Bar, 925 P.2d 1118, 1119-20 (Idaho 1996); Sandstrom v. Sandstrom, 880 P.2d 103, 108-09 (Wyo. 1994); In re Conduct of Smith, 861 P.2d 1013, 1016-17 (Or. 1993); Comm. on Legal Ethics v. Simmons, 399 S.E.2d 894, 898 (W. Va. 1990); In re Segall, 509 N.E.2d 988, 990 (Ill. 1987); Vickery v. Comm’n for Lawyer Discipline, 5 S.W.3d 241, 259-60 (Tex. App. 1999); District of Columbia Op. 258 (1995); Hawaii Op. 44 (2003). But see Pinsky v. Statewide Grievance Comm., 578 A.2d 1075, 1079 (Conn. 1990) (lawyer, in his role as a tenant of an office building, may contact the landlord directly about the landlord’s attempt to evict the lawyer, even though the landlord is represented by counsel in that proceeding).

The Committee agrees that SCR 20:4.2 applies to a lawyer who wishes to communicate with a former client now represented by successor counsel.

(footnote omitted)

The view that lawyers acting pro se are representing themselves and thus representing a client is almost universally accepted. It has resulted in discipline against lawyers who, when litigating against a condominium association, sent letters directly to the represented board¹ and who contacted a represented spouse directly in a domestic relations matter.²

Therefore, the lawyer who represents themselves in a legal matter should be careful to adhere to SCR 20:4.2.

Endnotes

¹ See In re Lucas, 789 N.W.2d 73 (N.D. 2010).

² See Vickery v. Commission for Lawyer Discipline, 5 S.W.3d 241 (Tex. App. 1999).