Communications boundaries - Communications with unrepresente...

Learning Outcomes

After reading this article, you will be able to identify the ethical boundaries for lawyers communicating with unrepresented persons. You will understand the requirements of Model Rule 4.3, including prohibitions on misleading conduct and giving legal advice, and know how to address misunderstandings about your role. You will be able to apply these principles to MPRE-style questions and avoid common pitfalls.

MPRE Syllabus

For the MPRE, you are required to understand the rules governing a lawyer’s communications with persons who are not represented by counsel. This article focuses on:

• The scope and requirements of Model Rule 4.3 regarding communications with unrepresented persons.
• The prohibition on giving legal advice to unrepresented persons whose interests conflict with your client’s.
• The duty to clarify your role and correct misunderstandings about your disinterest.
• The limits on negotiation, document preparation, and settlement discussions with unrepresented persons.
• The distinction between permissible factual information and improper legal advice.

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

1. When communicating with an unrepresented person whose interests conflict with your client’s, a lawyer:
   1. May give legal advice if the person asks for it.
   2. Must explain that the lawyer represents an adverse party and is not disinterested.
   3. May negotiate a settlement without any disclosures.
   4. Must refuse all communication.
2. Which of the following is permitted under Model Rule 4.3?
   1. Telling an unrepresented person not to sign a contract.
   2. Explaining your client’s position and the terms of a proposed agreement.
   3. Advising the unrepresented person on the best legal strategy.
   4. Stating you are disinterested in the outcome.
3. If an unrepresented person misunderstands your role in a matter, you must:
   1. Ignore the misunderstanding.
   2. Make reasonable efforts to correct the misunderstanding.
   3. Refer the person to your client for clarification.
   4. Provide legal advice to resolve the confusion.
4. A lawyer may prepare documents for an unrepresented person if:
   1. The lawyer does not explain the significance of the documents.
   2. The lawyer states or implies that they are disinterested.
   3. The lawyer explains that they represent an adverse party and gives no legal advice.
   4. The lawyer negotiates directly with the person without any disclosures.

Introduction

Lawyers often interact with individuals who do not have legal representation. The Model Rules of Professional Conduct set strict boundaries for these communications to prevent confusion, protect the interests of all parties, and avoid improper influence. Model Rule 4.3 addresses how lawyers must conduct themselves when dealing with unrepresented persons, especially when those persons’ interests may conflict with those of the lawyer’s client.

Key Term: Unrepresented Person
An individual involved in a legal matter who does not have a lawyer representing them in that specific matter.

The Core Rule: Model Rule 4.3

Model Rule 4.3 prohibits lawyers from stating or implying that they are disinterested when communicating with unrepresented persons. If the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer’s role, the lawyer must make reasonable efforts to correct the misunderstanding.

Key Term: Disinterested
Lacking a personal or professional stake in the outcome of a matter; not aligned with any party’s interests.

If the interests of the unrepresented person are or have a reasonable possibility of being in conflict with the interests of the lawyer’s client, the lawyer must not give legal advice to the unrepresented person, except for the advice to secure counsel.

Key Term: Legal Advice
Guidance or recommendations regarding legal rights, obligations, or strategies, as opposed to neutral explanations of facts or procedures.

Explaining Your Role and Correcting Misunderstandings

When dealing with an unrepresented person, you must clearly state that you represent your client and not the unrepresented person. If the person appears to believe you are neutral or acting in their interest, you must clarify your role and correct any misunderstanding.

Prohibition on Legal Advice

You may not provide legal advice to an unrepresented person whose interests conflict with your client’s, except to advise them to seek independent legal counsel. You may, however, explain your client’s position, describe the terms of a proposed agreement, and provide factual information about the process.

Negotiation and Document Preparation

You may negotiate directly with an unrepresented person and prepare documents for them, provided you do not mislead them about your role or give legal advice. You must not suggest that you are disinterested or that you are protecting their interests.

Worked Example 1.1

A lawyer represents a landlord in a dispute with a tenant who does not have a lawyer. The lawyer sends the tenant a proposed settlement agreement and states, “I think this is a fair deal for both sides.” The tenant signs the agreement.

Question: Has the lawyer violated the rules?

Answer:
Yes. By stating the deal is “fair for both sides,” the lawyer implied disinterest and gave legal advice to an unrepresented person with conflicting interests. The lawyer should have explained that they represent the landlord and advised the tenant only to seek independent counsel.

Worked Example 1.2

A lawyer represents a company in a contract negotiation. The other party is unrepresented. The lawyer explains the terms of the contract and clarifies, “I represent the company, not you. You may wish to consult your own lawyer before signing.” The unrepresented party signs the contract.

Question: Is this conduct proper?

Answer:
Yes. The lawyer explained their role, did not give legal advice, and advised the unrepresented person to seek independent counsel. This complies with Model Rule 4.3.

Exam Warning

On the MPRE, answer choices suggesting that a lawyer may give legal advice to an unrepresented person with conflicting interests are almost always incorrect. Only the advice to seek counsel is permitted.

Revision Tip

When in doubt, remember: you may explain your client’s position and the process, but do not give legal advice or imply you are neutral.

Key Point Checklist

This article has covered the following key knowledge points:

• Model Rule 4.3 governs communications with unrepresented persons.
• You must not state or imply that you are disinterested.
• If the unrepresented person misunderstands your role, you must correct the misunderstanding.
• Do not give legal advice to an unrepresented person with conflicting interests, except to advise them to seek counsel.
• You may explain your client’s position and provide factual information.
• You may negotiate and prepare documents if you clarify your role and avoid legal advice.
• Violating these rules can lead to discipline, even if the unrepresented person is not harmed.

Key Terms and Concepts

• Unrepresented Person
• Disinterested
• Legal Advice