Foolishly Representing Yourself Is Also Representing a Client

The North Dakota Supreme Court yesterday in a relatively rare spilt decision ruled that an attorney representing himself (pro se) is representing a client for purposes of North Dakota Rule of Professional Conduct 4.2:  Communications with Person Represented by Counsel. Disciplinary Board v. Lucas, 2010 ND 187 (2010). In the opinion, the court settled a split of authority on the issue. That is, there is at least one case holding that an attorney acting pro se is not representing a client when that client is himself for Rule 4.2. Pinsky v. Statewide Grievance Committee, 578 A.2d 1075 (Conn. 1990). 

In Lucas, the context is an attorney litigating a dispute with his condominium association board. The disciplined attorney made several strong statements directly to board members who were represented by counsels.  For example, here are a couple excerpts from two of his letters, as noted in the opinion:  

If we can't resolve our differences soon I will correspond with our owners to advise them of the actions taken by our Board which are contrary to their best interests and I will start two or three new lawsuits. 

. . . .

If the Board continues to encourage and permit [their attorney] to maliciously, vindictively and cruelly litigate and harass me I will have to shift to the same tactics and practices. There are many lawsuits I could bring, and there are internet sites and books on how to be a 'bad neighbor.' I may have to replace Tom as the 'neighbor from hell.'

Two big takeaways, as far as I am concerned.  First, when you send letters like this, it's rare that something good follows.  Threats and hyperbole may work from time to time, but it's rarely, if ever, the best tactic.   

Second, for lawyers in business, take note.  Representing yourself may serve your purposes from time to time, but you need to know that in many (if not most) jurisdictions you could be subject discipline for representing yourself if you continue to communicate with others after they are represented by counsel.

This rule, it seems to me, is right. Plus, despite a constitutional right to take yourself as a client, it does not mean you aren't a fool for doing so.  See, e.g., People v. Watts, 173 Cal. App. 4th 621 (2009) ("We review the entire record de novo to determine whether a defendant validly exercised the constitutional right to have ‘a fool for a client.’").   

--Joshua Fershee