Can a lawyer who is representing himself in his own case contact the represented opposing party directly without the other lawyer's consent?

Plain-English summary

The Committee was asked whether an attorney who is a litigant acting pro se may communicate directly with a represented opposing party about the matter without the consent of opposing counsel, a question raised by family-law practitioners who deal with attorneys handling their own divorce or custody cases. The opinion concluded that such unauthorized, direct communication would violate Rule 4.2 notwithstanding that the communicating attorney is a party, and that under the rule's broad terms it would be improper even if the matter were not in litigation.

The opinion acknowledged that courts elsewhere have split. It followed Sandstrom v. Sandstrom (Wyo. 1994) and In re Segall (Ill. 1987), which held that an attorney who is a party to litigation represents himself when contacting an opposing party and is therefore subject to the rule, and rejected the contrary view in Pinsky v. Statewide Grievance Committee (Conn. 1990). The Committee reasoned from the policies behind Rule 4.2, which it had summarized in Ethics Opinion 94-1: preventing an attorney from taking unfair advantage of a represented party through superior knowledge and skill, avoiding disputes that could make the attorney a witness, protecting a client from inadvertent disclosures or unjust pressure, channeling disputes through counsel, and avoiding conflicts between advancing one's interests and not overreaching an unprotected party.

The opinion explained that the communicating attorney's status as a party does not diminish the interests of the opposing party and opposing counsel; if anything, the need to protect against overreaching is stronger when the communicating lawyer is an interested party. While the comment to the rule allows parties to communicate directly with each other, the Committee concluded that in the special situation where the communicating party is a lawyer acting as such on his own behalf, the lawyer's personal interest cannot override the interests of the opposing party and counsel. The opinion drew a distinction (consistent with Opinion 94-1) that Rule 4.2 bars unauthorized communications by party-attorneys only when they act as attorneys in a pro se or representative capacity, and it revoked a contrary remark in Opinion 94-1 that an attorney who is a party has the same rights as any other party.

Currency note

This opinion was issued in 1995, before Alaska's adoption of the 2009 revisions to the Alaska Rules of Professional Conduct. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Can a lawyer handling his own divorce contact his represented spouse directly?

A: The opinion concluded that a lawyer acting pro se may not communicate directly with the represented opposing party about the matter without opposing counsel's consent, because Rule 4.2 applies despite the lawyer's status as a party.

Q: Doesn't the comment let parties talk to each other directly?

A: Per the opinion, that comment applies generally, but in the special case where the communicating party is a lawyer acting on his own behalf, the lawyer's personal interest cannot override the interests of the opposing party and counsel.

Q: How can a pro se attorney communicate with the other party?

A: The opinion noted that because the rule bars only unauthorized communications, the attorney may freely seek the opposing counsel's authorization to communicate.

Q: Does this apply only in litigation?

A: No. The opinion stated that under the rule's broad terms, such unauthorized communication would also be improper even if the matter were not in litigation.

Background and rules framework

The opinion interpreted Alaska Rule of Professional Conduct 4.2 (communication with a person represented by counsel; Model Rule 4.2), noting it is substantially identical to former DR 7-104(A)(1). It built on the Committee's Ethics Opinion 94-1 (Rule 4.2 and communications with government agencies) and surveyed out-of-state authority, including Sandstrom v. Sandstrom (Wyo. 1994), In re Segall (Ill. 1987), and Pinsky v. Statewide Grievance Committee (Conn. 1990).

Citations and references

Rules of Professional Conduct:

• Alaska RPC 4.2 (communication with represented persons; former DR 7-104(A)(1))

Cases:

• Sandstrom v. Sandstrom, 880 P.2d 103 (Wyo. 1994)
• In re Segall, 509 N.E.2d 988 (Ill. 1987)
• Pinsky v. Statewide Grievance Committee, 578 A.2d 1075 (Conn. 1990)

Other opinions cited:

• Alaska Ethics Opinion 94-1 (a contrary remark partly revoked)

See also

• ABA Formal Op. 502: Pro Se Lawyer and Rule 4.2
• AK Bar Ethics Op. 2006-1: Self-Represented Contact
• AK Bar Ethics Op. 98-1: Contact With a Defendant's Insurer

Source

• Landing page: https://alaskabar.org/ethics-discipline/ethics-opinions/adopted-ethics-opinions-chronological/
• Original PDF: https://alaskabar.org/wp-content/uploads/95-7.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

ALASKA BAR ASSOCIATION
ETHICS OPINION 95-7
Communication With a Represented
Party By An Attorney Acting Pro Se
The Committee was asked to decide whether an attorney litigant who is
acting pro se may properly communicate about the matter in litigation directly
with a represented party without the consent of opposing counsel. The
question was posed by family law practitioners who occasionally deal with
attorneys who are, for example, handling their own divorce or child custody
proceedings. The issue is raised, for example, where an unrepresented
attorney who is party to a divorce proceeding communicates directly with his or
her represented spouse about the divorce, without the consent of opposing
counsel.
It is the opinion of the Committee that such an unauthorized, direct
communication with a represented party would violate Alaska Rule of
Professional Conduct 4.2, notwithstanding that the communicating attorney is
a party to the litigation. Under the broad parameters of the rule, such
unauthorized communication would also be improper if the matter were not in
litigation.
Rule 4.2 provides:
In representing a client, a lawyer shall not
communicate about the subject of the representation
with a party or person the lawyer knows to be
represented by another lawyer in the matter, unless
the lawyer has the consent of the other lawyer or is
authorized by law to do so.1
This rule prohibits certain kinds of unauthorized communications with a party
or person who is represented by another lawyer. The rule specifically bars
communications directed to another lawyer's client that concern the subject

1

Rule 4.2 is substantially identical to its predecessor, DR 7-104(A)(1), and some of the
authorities discussed in this opinion relate to that disciplinary rule.

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matter of the other lawyer's attorney-client relationship, unless the other
lawyer consents or the communications are otherwise authorized by law.
At issue is whether Rule 4.2 prohibits such unauthorized
communications by an attorney who is acting on his or her own behalf, rather
than representing a client. In effect, we consider whether the general rule
must yield when the communicating attorney is an interested party. This
straightforward issue has produced conflicting rulings in state courts
elsewhere. Compare Sandstrom v. Sandstrom, 880 P.2d 103 (Wyo. 1994)
(applying Rule 4.2 to an attorney representing himself in litigation against his
ex-wife) and In re Segall, 509 N.E.2d 988 (Ill. 1987) (ruling that an attorney
who is a party to litigation represents himself in communications with other
parties and thus is subject to the rule) with Pinsky v. Statewide Grievance
Committee, 578 A.2d 1075 (Conn. 1990) (ruling the communications of an
attorney litigant who is not representing a client are not governed by Rule 4.2).
In Sandstrom, the Supreme Court of Wyoming rejected a pro se attorney
litigant's argument "that, because he was a party to the action, he had an
absolute right to contact the wife, who was the opposing party." 880 P.2d at

108. The Court considered both the Segall and Pinsky rulings cited above.
     The Court rejected the Supreme Court of Connecticut's ruling in Pinsky,
     stating:
     The Illinois Supreme Court reached the opposite
     conclusion and held: "An attorney who is himself a
     party to the litigation represents himself when he
     contacts an opposing party." In Re Segall, 509 N.E.2d
     988, 990 (1987).
     We agree with the Illinois Supreme Court's
     rationale. The rule is designed to protect
     litigants represented by counsel from
     direct contacts by opposing counsel. A
     party, having employed counsel to act as
     an intermediary between himself and
     opposing counsel, does not lose the

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protection of the rule merely because
opposing counsel is also a party to the
litigation.
509 N.E.2d at 990.
Sandstrom, 880 P.2d at 108-09.
In the Committee's opinion, the Wyoming and Illinois courts have
adopted the better rule.2 Both Courts and the Committee construe Rule 4.2 to
apply to pro se attorney litigants notwithstanding their status as parties. This
resolution is indicated by examining the purposes of Rule 4.2. The Committee
recently summarized the rule's policy bases as including:
preventing an attorney from taking unfair advantage of
a represented party by application of the attorney's
superior knowledge and skill [Complaint of Korea
Shipping Corp., 621 F. Supp. 164, 167 (D. Alaska
1985)]; avoidance of disputes regarding conversations
which could force an attorney to become a witness;
protecting a client from making inadvertent
disclosures of privileged information or from being
subjected to unjust pressures; helping settle disputes
by channelling them through dispassionate experts;
preventing situations giving rise to the conflict between
the lawyer's duty to advance a client's interests and
the duty not to overreach an unprotected party; and
providing parties with a rule that most of them would
choose to follow in any event. Leubsdorf,
Communicating with Another Lawyer's Client: The
Lawyer's Veto and the Client's Interests, 127
Pennsylvania Law Review 683, 686-87 (1978-79).
Alaska Bar Association Ethics Opinion 94-1. See also, 2. G. Hazard & W.
Hodes, The Law of Lawyering § 4.2:101 (2d ed. 1991). We further noted the
rule's additional purpose of protecting the other party's attorney-client
2

See also, In re Mettler, 748 P.2d 1010, 1010-11 n. 2 (Or. 1988) (indicating that Oregon has
amended DR 7-104(A)(1), effective June 1, 1986, by adding the sentence: "This prohibition
includes a lawyer representing the lawyer's own interests.")

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relationship, and preventing one attorney from impairing opposing counsel's
performance. Ethics Opinion 94-1, citing Obeles v. State Bar, 108 Cal. Rptr.
359, 510 P.2d 719, 722-23 (1973).
In light of these reasons, Rule 4.2 can be seen to protect the interests of
the communicating attorney and his or her client, the opposing party, and the
opposing counsel.3 The rule protects the communicating attorney (who may be
acting on his or her own behalf, or on behalf of a client) from potential conflicts
of interest and ethical dilemmas. The rule protects the opposing party from
overreaching by a skilled or knowledgeable lawyer. (Realistically, of course, the
opposing party may be more highly skilled or knowledgeable than the
communicating attorney. It is equally plausible that the other party is an
attorney. Even so, these possibilities do not eliminate the prophylactic value of
Rule 4.2.)
The rule also protects both the opposing party and opposing counsel
from the risk of inadvertent disclosures of confidential or privileged
information, and from interference with their attorney-client relationship. And
by prohibiting only unauthorized communications, the rule guards against
such interference without unduly burdening the communicating attorney.
That is, attorneys who want to communicate with represented parties may
freely seek authorization to do so from opposing counsel.4
On balance, in the Committee's view, these reasons also support
applying Rule 4.2 to attorneys acting on their own behalf. The communicating
attorney's status as a party does not diminish the interests of opposing parties
and opposing counsel. To the contrary, the need to protect opposing parties
from undue pressure and overreaching is stronger when the communicating
lawyer is an interested party.
To be sure, the Comment to the rule observes that "parties to a matter
may communicate directly with each other and a lawyer having independent
justification for communication with the other party is permitted to do so."
This Comment applies generally. But in the special situation where the
3

Of course, the rules are also generally intended to safeguard the courts and society's interests
in the legal system.
4

Under the rules, a lawyer representing a client should "inform the client of communications
from another party and take other reasonable steps that permit the client to make a decision
regarding a serious offer from another party." Rule 1.4, Comment.

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communicating party is a lawyer acting as such on his or her own behalf,
different concerns govern. In the Committee's opinion, in such circumstances
the communicating attorney's personal interest in communicating directly with
an opposing party without the opposing counsel's consent cannot override the
interests of the opposing party and his or her counsel.5
Approved by the Alaska Bar Association Ethics Committee on September 7, 1995.
Adopted by the Board of Governors on October 20, 1995.

G:\DS\EC&OPS\OPINIONS\95-7.DOC

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Ethics Opinion 94-1 addresses the application of Rule 4.2 to attorney communications with
government agencies. In the discussing this Comment in that context, we stated:
With regard to attorneys, it is the committee's opinion that the
Comment interprets Rule 4.2 to authorize direct contact regarding a
matter in controversy with a government officer or agency, without
consent from the agency's attorney, when the contacting attorney is a
"party" to the controversy, and is not acting in a representative
capacity.
Opinion 94-1 (emphasis added). The Committee draws the same distinction here, interpreting Rule
4.2 to bar unauthorized communications by party-attorneys only when they are acting as attorneys in
a pro se or other representative capacity. (In other words, in the Committee's opinion, an attorney
who retains independent counsel and who does not act as an attorney in a given matter would not be
subject to Rule 4.2 with respect to communications concerning that matter.)
In the final summary of Opinion 94-1, we also stated that "An attorney who is a party to
litigation has the same rights as any other party . . . ." To the extent that this remark is inconsistent
with the present Opinion, it is hereby revoked. An attorney who acts as an attorney and who is a
party to litigation remains subject to the ethical constraints applicable to all attorneys acting as such.

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