September 30, 2010
Rule 4.2 Applies To Pro Se Attorney
The North Dakota Supreme Court has held that Rule 4.2, which forbids unauthorized communication with a represented party, applies to an attorney who is pro se in the matter:
[The attorney] argues he did not violate Rule 4.2 because the rule does not apply when an attorney is representing himself. His view is too narrow. The rule protects "a person who has chosen to be represented by a lawyer in a matter against possible overreaching by other lawyers who are participating in the matter, interference by those lawyers with the lawyer-client relationship, and the uncounseled disclosure of information relating to the representation." N.D.R. Prof. Conduct 4.2 cmt. 1. Most courts have held Rule 4.2 applies to attorneys representing themselves because it is consistent with the purpose of the rule. See In re Schaefer, 25 P.3d 191, 199 (Nev. 2001) ("The 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."); In re Segall, 509 N.E.2d 988, 990 (Ill. 1987) ("A party, having employed counsel to act as an intermediary between himself and opposing counsel, does not lose the protection of the rule merely because opposing counsel is also a party to the litigation."). In addition, we have recognized Rule 4.2 "is to prevent lawyers from taking advantage of laypersons." Disciplinary Bd. v. Hoffman, 2003 ND 161, ¶ 17, 670 N.W.2d 500.
[The attorney] relies on a Connecticut Supreme Court decision to argue Rule 4.2 does not apply when he is representing himself because he is not representing a client. In Pinsky v. Statewide Grievance Committee, the court held an attorney representing himself had a right to communicate with a represented party because he was not representing a client. 578 A.2d 1075, 1079 (Conn. 1990). Most courts have rejected Pinsky, reasoning "the policies underlying [Rule 4.2] are better served by extending the restriction to lawyers acting pro se." In re Haley, 126 P.3d 1262, 1267 (Wash. 2006) (discussing prior authority); see also Runsvold v. Idaho State Bar, 925 P.2d 1118, 1120 (Idaho 1996) ("We thus construe the phrase of Rule 4.2, 'in representing a client' to include the situation in which an attorney is acting pro se because this interpretation better effectuates the purpose of Rule 4.2."). We join the majority of courts in rejecting the rationale of the court in Pinsky.
We conclude that the reasoning of courts in In re Haley and Runsvold is more persuasive than Pinsky and that the majority position is more in line with our precedent and with our prior application of Rule 4.2 in the prior  case [involving the same attorney]. We therefore adopt the hearing panel's conclusion that Rule 4.2 applies to attorneys representing themselves.
The court imposed a 30 day suspension.
The Chief Justice would impose a reprimand:
Although [the attorney] had been reprimanded previously for similar action, [he] petitioned this Court to review the hearing panel's decision. We denied the petition and did so by order and without explanation. This Court does not grant leave to appeal an informal decision "unless the person seeking leave to appeal shows that the board acted arbitrarily, capriciously, or unreasonably." N.D.R. Lawyer Discipl. 3.1(D)(8). Nevertheless, it is only now, in the majority opinion, that "We join the majority of courts in rejecting the rationale of the court in Pinsky" and "We conclude that the reasoning of courts in In re Haley and Runsvold is more persuasive than Pinsky and that the majority position is more in line with our precedent and with our prior application of Rule 4.2 in the prior Lucas case."
Perhaps [the attorney] should have been able to glean the fact we disagreed with his interpretation of Rule 4.2 from our order denying his petition to appeal the public reprimand. However, that public reprimand concerned Rules of Professional Conduct in addition to Rule 4.2. I believe that [his] failure to grasp the significance of the order denying his petition to appeal is why the hearing panel in this instance found [his] action was more negligent than intentional. For that reason, as well as the other reasons cited by the hearing panel, I would impose a public reprimand rather than suspension.
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The court fails to explain why it should substitute its own logic for the plain meaning of the rule which begins “In representing a client….” How could the rule be any clearer? This is an example of the court legislating from the bench. Furthermore, the court’s discussion of the vagueness issue, which takes place in its consideration of the sanction rather than more correctly in considering whether the attorney should even be held to this rule, only serves to demonstrate that the rule was vague at the time that the lawyer is claimed to have violated the rule.
The majority of courts might not like it, but the Connecticut courts’ reading of these rules is clearly the correct one. If the courts don’t like it then rewrite the rule legislatively rather than judicially ex post facto.
Posted by: FixedWing | Sep 30, 2010 6:10:44 PM