When a lawyer represents herself in a case, can she contact the opposing party directly if she knows that party has a lawyer?
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This page answers the general question as of 1997. Ezel answers yours: whether it's allowed on your facts, under the current Massachusetts Rules of Professional Conduct, with citations.
Plain-English summary
A lawyer was representing herself in litigation in which she knew the adverse party was represented by counsel. She asked whether DR 7-104(A)(1), the rule barring a lawyer from communicating about the matter with a represented party without that party's counsel's consent, applied when she was both the lawyer and the client.
The committee acknowledged that the Disciplinary Rules sometimes do not apply where a lawyer is also a client, citing Borman v. Borman, in which the SJC held a lawyer's partners were not disqualified merely because he would be a witness, because there was no possibility of confusing his role as a party. But it found the purpose of the no-contact rule pointed the other way. That rule exists to prevent a lawyer from using superior knowledge and skill to take advantage of a party in conversation outside the presence of the party's counsel, and that danger persists when the lawyer is acting pro se; she is not just a lay person talking to a lay person. The committee therefore concluded the SJC would interpret DR 7-104(A)(1) to apply to a lawyer representing herself.
Currency note
This opinion was issued in 1997, before Massachusetts's adoption of the 2015 revisions to the 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 Treat this page as historical context, not current guidance.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: Could a lawyer representing herself contact the opposing party directly?
A: No. The committee concluded that the no-contact rule of DR 7-104(A)(1) applied to a pro se lawyer, so she needed the consent of the opposing party's counsel to communicate with that party about the matter.
Q: Why did the rule apply even though she was the client?
A: The committee reasoned that the rule guards against a lawyer using superior knowledge and skill to take advantage of a represented party outside counsel's presence, and that risk remains when the lawyer is acting pro se.
Background and rules framework
The opinion applied the predecessor disciplinary rule DR 7-104(A)(1), the no-contact rule, which corresponds to Model Rule 4.2 (communication with a person represented by counsel). The committee analyzed the rule's purpose against the lawyer-as-client situation addressed in Borman v. Borman.
Citations and references
Rules of Professional Conduct:
- Model Rule 4.2 / DR 7-104(A)(1) (communication with a represented person)
Cases:
- Borman v. Borman, 378 Mass. 775 (1979) (Disciplinary Rules sometimes inapplicable where the lawyer is also the party)
See also
- MA Bar Ethics Op. 11-03: Contacting a represented party
- MA Bar Ethics Op. 05-01: Contacting a represented party for counsel's contact information
Source
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