Transactions with Non-Clients · 2-8% of the exam
17.1.1Communicating with Unrepresented Persons (Rule 4.3)
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- Rule 4.3 — Communicating with an Unrepresented Person
Why
An unrepresented person has no lawyer to interpret opposing counsel's words. Rule 4.3 prevents exploitation while still permitting direct communication.
Plain English
You may speak directly with an unrepresented person on your client's behalf but can't claim to be neutral. If you know or reasonably should know the person misunderstands your role, you must correct it.
Once their interests may possibly conflict with your client's, the only advice you may give is to consult a lawyer — and advice here means applying the law to this person's own situation, not explaining the law in general terms.
Rule
Rule 4.3 — Communicating with an Unrepresented Person
When dealing on behalf of a client with a person not represented by counsel, a lawyer shall:
Not state or imply that the lawyer is disinterested.
When the lawyer knows or reasonably should know that the person misunderstands the lawyer's role, make reasonable efforts to correct the misunderstanding.
Not give legal advice to the unrepresented person (other than the advice to secure counsel) when the lawyer knows or reasonably should know that the person's interests are or have a reasonable possibility of being in conflict with the client's interests.
Conditions and notes:
Prongs 2 and 3 apply an objective "reasonably should know" standard. Subjective unawareness does not relieve the duty.
The trigger for the no-advice rule is that the person's interests have a reasonable possibility of being in conflict with the client's: a possibility standard, not a certainty, though the possibility itself has to be a reasonable one.
Advising an unrepresented person to consult a lawyer is always permissible and is the only advice the rule leaves open when interests may conflict; explaining the law in general terms is not advice within that ban.
Comment [2]: the rule does not stop a lawyer from negotiating the terms of a transaction or settling a dispute with an unrepresented person. Once the lawyer has explained that the lawyer represents an adverse party and does not represent this person, the lawyer may inform the person of the terms on which the client will enter into an agreement or settle the matter, prepare documents that require the person's signature, and explain the lawyer's own view of the document's meaning or of the underlying legal obligations.
Comment [1]: for the misunderstandings that arise when a lawyer for an organization deals with an unrepresented constituent, see Rule 1.13(f) (taught fully in Chapter 9).
- Rule 4.2 — investigative contact with a represented person
Rule 4.2's "authorized by law" exception covers contact a law or court order authorizes, and Comment [5] names the investigative activities of lawyers representing governmental entities — directly or through investigative agents — before civil or criminal enforcement proceedings begin. Comment [5] runs the other way too: a government lawyer communicating with a represented accused must comply with Rule 4.2 in addition to honoring the accused's constitutional rights, and the fact that a communication violates no state or federal constitutional right is insufficient to establish that the communication is permissible under the rule. The "authorized by law" exception has no work to do where the person is not known to be represented: Rule 4.2 is not engaged at all, and Comment [9] routes that situation to Rule 4.3 — but where the circumstances suggest the person may in fact be represented under a limited-scope agreement, Comment [9] says the lawyer should first inquire whether the person is represented for any portion of the matter, so the lawyer knows whether to proceed under Rule 4.2 or Rule 4.3.
Example 1
Ex. 1
Ana represents the buyer in a residential real-estate sale. The seller, Ben, has no attorney. On a negotiating call, Ana tells Ben that the inspection contingency "probably won't hold up in court" and that he "has no realistic basis" to dispute the requested price reduction. Ana never discloses she represents only the buyer. Ask yourself which side of the general-versus-tailored line those statements fall on. Ana violated Rule 4.3: those are tailored legal assessments applied to Ben's position. Any reasonable lawyer would recognize the conflict, and the only permissible advice was to consult his own counsel.
Trap
Tip
Questions · 6
Q 01ch17-e01
Question 1 of 6 · Rule 4.3
Attorney represented a regional grocery chain that wanted to buy a family bakery's recipes and trade name. Seller owned the bakery outright, had no lawyer, and had never been through the sale of a business. At the opening of the first negotiating session Attorney told Seller that the aim was a deal that "works out fairly for everyone at this table," that Seller should feel free to ask anything at all, and that Attorney would "keep an eye on both sides of the paperwork." Attorney never said which party Attorney acted for. Seller signed the purchase agreement three weeks later on terms Seller found acceptable. Is Attorney subject to discipline?
Keys 1 to 4 choose.