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Limited-scope representation is becoming more and more common, as clients seek out alternatives to traditional legal services. But dealing with an opposing party who only has limited representation can raise serious ethical issues regarding communication. What can an attorney say directly to someone with limited representation and what has to go through their lawyer?
Thankfully, the ABA addressed this conundrum in a recent ethics opinion -- and we've boiled it down to the basics. Here's your quick and easy cheat sheet for talking to someone with limited representation.
As Always, There's a Disclaimer
The ABA's ethics opinion, Formal Ethics Opinion 472, focuses on the interaction, and sometimes conflict, between Model Rules 1.2 and 4.2. Rule 1.2 allows lawyers to limit the scope of representation, while Rule 4.2 establishes the "no contact" rule -- attorneys may not communicate about the subject of the representation directly with represented parties.
But, the ethics opinion doesn't set up any binding, final rules. Instead, as the ABA Journal noted recently, it provides a general outline, while asking attorneys to "look to the circumstances of each case to help them decide how to proceed."
So, remember, this is guidance only. You'll still have to do your own homework. (That's doubly true for attorneys in California, where ethics guidelines do not follow the ABA's Model Rules.)
Let's say you're representing a landlord in a landlord-tenant dispute, where the tenant has limited-scope representation regarding her lease renegotiation. Can you communicate directly to the tenant about other matters outside that scope? Yes.
According to the ethics opinion, a lawyer only violates Rule 4.2 "if the lawyer knows that the person is represented by another lawyer in the matter to be discussed." That requires actual knowledge.
There is no affirmative duty to ask about representation, but the ethics opinion warns that lawyers may not evade ethics rules by "closing eyes to the obvious."
But, that doesn't mean you shouldn't ask for clarification. When seeking information from an individual and when representation is in doubt, attorneys "should contact the lawyer providing limited-scope services to identify the issues on which the inquiring lawyer may not communicate directly," according to the opinion.