Q Before a lawsuit has been commenced, may I speak to a person whose interests are adverse to my client's without first advising them that they should obtain a lawyer before speaking to me?
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 | A Rule 4.3 of the Rules of Professional Conduct (effective April 1, 2009) provides:
In communicating 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 a 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 advice to secure counsel if the lawyer knows or reasonably should know that the interests of such person are or have a reasonable possibility of being in conflict with the interests of the client
(emphasis added).
The rule does not prohibit contact with an unrepresented person but requires that the lawyer avoid any implication that he or she is disinterested. If the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer’s role, the lawyer must promptly correct the misunderstanding. The rule does not require that the lawyer advise the unrepresented person to seek counsel, but limits the legal advice the lawyer may give to that suggestion.
To a large extent, the application of the rule depends upon the sophistication of the unrepresented person. If it is apparent that the person understands that his interests are adverse to the lawyer’s client, the lawyer may speak freely, so long as he makes clear that he represents the client and not the unrepresented person. Any suggestion that the lawyer’s inquiry is disinterested must be dispelled:
The 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.
Rule 4.3, comment [2].
There is, therefore, no requirement that a lawyer advise an unrepresented person to seek counsel but the lawyer must be careful to dispel any misunderstanding that the lawyer is neutral or disinterested. Ordinarily, this can be accomplished by identifying the client to the unrepresented person and informing the person that the client’s interests may be adverse to those of the unrepresented person.
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Before a lawsuit has been commenced, may I speak to a person whose interests are adverse to my client's without first advising them that they should obtain a lawyer before speaking to me?
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