Ethics Corner Article

New Hampshire Bar News – June 18, 2014

Dear Ethics Committee: I am in private practice and occasionally encounter an opposing party who is not represented by counsel and has little knowledge of the law and procedure. I know that Rule 4.3 prohibits giving legal advice to an unrepresented opponent. Recently, an unrepresented opponent in a family matter asked me how many days she has to file an answer to my client’s complaint. I responded that the rules require answers to be filed within 30 days but that I could not give her any further information because my client’s interests are opposite to her own. Was this a proper response?

First, you are correct that Rule 4.3 applies in this situation. In pertinent part, it provides, “The lawyer shall not give legal advice to an unrepresented person, other than the advice to secure counsel, if the lawyer knows or reasonably should know that the interests of such a person are or have a reasonable possibility of being in conflict with the interests of the client.” An unrepresented opposing party falls within the ambit of this rule, and therefore, a lawyer violates the rule if the lawyer provides legal advice to that party. The comments to the rule define the concern, noting that the rule protects “[a]n unrepresented person, particularly one not experienced in dealing with legal matters, [who] might assume that a lawyer is disinterested in loyalties or is a disinterested authority on the law even when the lawyer represents a client.” NHPRC 4.3, Comment [1].

Whether or not a particular communication is prohibited by Rule 4.3 depends on whether it constitutes “legal advice.” Albeit in a different context than Rule 4.3, at least one ethics committee has defined legal advice as a recommendation “tailored to the facts of the consumer’s particular situation.” DC Bar Ethics Opinion 316 (2002).

Under this definition, legal advice is imparted when a lawyer applies a particular set of facts to the applicable law, including procedural and substantive rules, as well as statutory and case law, and advises a person of that analysis. Accordingly, informing the unrepresented opponent that she had 30 days to file an answer in the context of the facts of your case may have constituted legal advice, because you had to apply the applicable court rules to determine the deadline in the complaint you filed in the case.

On the other hand, some practitioners interpret Rule 4.3 to permit a lawyer to offer “legal information,” but not legal advice. In their view, legal information is a factual statement that requires no interpretation – what a particular statute states or what a court’s procedural rules require.

Legal advice, on the other hand, is an opinion or an interpretation based upon the lawyer’s knowledge, experience, and training. Paula J. Frederick, “Learning to Live with Pro Se Opponents,” GPSolo Magazine – October/November 2005. Under such an interpretation, a lawyer does not violate Rule 4.3 by informing an unrepresented opponent of the existence of the 30-day rule for answers. Moreover, it could be argued that from a standpoint of navigating a complex court system and ensuring access to justice, the lawyer’s decision to provide such information is both efficient and professional.

It should be apparent that there is no bright-line rule on what constitutes impermissible legal advice. The comments to the rule provide some guidance when an attorney communicates about a matter with an unrepresented opponent.

Comment [2] states: “So long as the lawyer has explained that the lawyer represents an adverse party and is not representing the [unrepresented opponent], 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.”

Thus, although Rule 4.3 prohibits a lawyer from dispensing legal advice to an unrepresented opponent, Comment [2] allows the lawyer to communicate with the unrepresented opponent about the positions of that lawyer’s client, or the lawyer’s views of the opponent’s legal rights and duties. In taking advantage of this provision, a lawyer must make it clear to the unrepresented opponent that the lawyer represents a party with adverse interests, and that the lawyer is expressing his or her view of legal rights, duties or obligations, rather than offering an authoritative or disinterested statement of the law. It is also advisable that the lawyer preface and/or follow up any such view or observation with a recommendation that the unrepresented opponent retain counsel.

Ultimately, the scope and content of communications with an unrepresented party, and the risk that such communications may be interpreted as legal advice by that party, will vary based on the sophistication, knowledge, and training of the unrepresented opponent. Put differently, because the comments to Rule 4.3 note that “one not experienced in dealing with legal matters, might assume that a lawyer is disinterested in loyalties or is a disinterested authority on the law even when the lawyer represents a client,” a lawyer must be mindful of whether the unrepresented opponent is likely to construe a communication as legal advice or as something other than the view or opinion of the lawyer on behalf of the lawyer’s client.

Additionally, if a lawyer has reason to believe that it would be contrary to the interests of the lawyer’s client to engage in communications with the opponent about an inquiry posed by that opponent, the lawyer should refrain from such communications, even if such communications do not constitute legal advice, and instead advise the unrepresented opponent to retain counsel.

Returning to your question, you may have violated Rule 4.3 to the extent that you gave legal advice, i.e., a response that required you to apply the facts of your case to the procedural rules of court. Whether or not you violated the rule could depend on other considerations, such as whether or not it was contrary to the interests of your client for you to engage in such communications, and whether, given the circumstances of the case and the sophistication of the unrepresented opponent, he or she was likely to accept your response as a disinterested, definitive statement of the law.

Under the circumstances of this question, the better practice might have been simply to instruct the unrepresented opponent to retain her own counsel to obtain an answer to her question.

The Ethics Committee provides general guidance on the NH Rules of Professional Conduct with regard to a lawyer’s own prospective conduct. New Hampshire lawyers may contact the Ethics Committee for confidential and informal guidance by emailing the Ethics Committee Staff Liaison. Brief ethics commentaries based upon member inquiries and suggestions will be published monthly in the NH Bar News.