Can a lawyer who is personally a party (here, a stepfather) contact a represented person directly when the lawyer is not representing a client?

Plain-English summary

A, a lawyer, was married to B, who was formerly married to C; A wished to contact C about the children of B and C (A's stepchildren). C's lawyer, D, told A not to contact C directly about the children. A did not represent B, and there was no ongoing Family Court litigation. The question was whether A, acting as an interested party and not as an attorney, could contact C directly about matters relating to the children.

The committee assumed A was not representing B, and noted that if it were determined as a matter of law that A acted as a lawyer for another party, it would be improper for A to contact C without D's consent under Rule 4.2. But Rule 4.2 applies only to communications a lawyer makes "in representing a client." Citing S.C. Bar Advisory Opinion 90-17, the committee reiterated that Rule 4.2 generally does not prohibit one party from contacting another directly even without the other party's counsel's consent, and the Comment to Rule 4.2 says parties may communicate directly and a lawyer with independent justification for communicating with the other party may do so. It concluded Rule 4.2 does not preclude one individual from contacting another represented individual, even though the contacting party is a lawyer, when the contact is not made in the course of representing a client, and that A's role as a stepfather concerned with his stepchildren's welfare may supply sufficient independent justification. The committee cautioned that A's professional status may still limit the range of conduct: A should avoid overreaching, should not act to undermine C's relationship with D, and should not continue contacting C so as to harass him if C directly instructs A to stop. The absence of ongoing litigation did not change the conclusion, since Rule 4.2 applies regardless of a formal proceeding, but on these facts an appropriate attempt by A to contact C directly would not violate Rule 4.2.

Currency note

This opinion was issued in 1992, before the South Carolina Bar's adoption of the 2005 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 Treat this page as historical context, not current guidance.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: Does Rule 4.2 stop a lawyer from contacting a represented person when the lawyer is a party, not counsel?

A: The committee said no. Rule 4.2 applies only to communications made in the course of representing a client, so a lawyer acting purely as an interested party may normally contact the represented person directly.

Q: What gave the stepfather the right to make contact?

A: The committee pointed to the Comment to Rule 4.2 allowing a person with "independent justification" to contact the other party, and found a stepfather's interest in his stepchildren's welfare could supply that justification.

Q: Are there limits on how the lawyer-party may behave?

A: Yes. The committee said the lawyer should avoid overreaching, should not undermine the person's relationship with their counsel, and should not continue contacting the person to harass after being told to stop.

Background and rules framework

The opinion applied Rule 4.2 (communication with a represented person), which corresponds to Model Rule 4.2, reading its "in representing a client" trigger and the Comment's allowance for parties and persons with independent justification. It built on S.C. Bar Advisory Opinion 90-17.

Citations and references

Rules of Professional Conduct:

• South Carolina RPC 4.2 / Model Rule 4.2: in representing a client, a lawyer shall not communicate about the subject of the representation with a represented person without that person's counsel's consent; the Comment allows parties and persons with independent justification to communicate directly.

Other opinions cited:

• SC Bar Advisory Opinion 90-17: Rule 4.2 generally does not bar one party from contacting another directly.

See also

• SC Bar Ethics Op. 92-31: Ex Parte Contact With a Defendant's Former Employees
• SC Bar Ethics Op. 01-01: Ex Parte Contact With a Represented Company's Former Employee

Source

• Landing page: https://www.scbar.org/for-lawyers/quicklinks/legal-resources/ethics-advisory-opinions/ethics-advisory-opinion-92-07/

Original opinion text

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

UPON THE REQUEST OF A MEMBER OF THE SOUTH CAROLINA BAR, THE ETHICS ADVISORY COMMITTEE HAS RENDERED THIS OPINION ON THE ETHICAL PROPRIETY OF THE INQUIRER’S CONTEMPLATED CONDUCT. THIS COMMITTEE HAS NO DISCIPLINARY AUTHORITY. LAWYER DISCIPLINE IS ADMINISTERED SOLELY BY THE SOUTH CAROLINA SUPREME COURT THROUGH ITS COMMISSION ON LAWYER CONDUCT.

Ethics Advisory Opinion 92-07

A is a lawyer married to B. B formerly was married to C. A wishes to contact C regarding the children of B and C (A's step-children). D, the lawyer for C, has informed A that he is not to contact C directly regarding the children. A does not represent B, and there is no on going litigation in Family Court.

Question:
Acting as an interested party and not as an attorney, may A contact another represented party directly regarding concerns, problems, or matters relating to the children?

Summary:
Rule 4.2 prohibits contact by a lawyer with another represented party without consent of the other counsel only when the lawyer contacts the other party in the course of representing a client. If A acts as a party in the course of representing a client, A normally may contact C directly. However, A should not be overbearing or harassing and should not act to undermine other counsel.

Opinion:
It is assumed by the inquirer that A does not represent his wife, B, in contacting C, B's ex-spouse. This opinion is based upon that assumption. If it were determined as a matter of law that A did act as lawyer for another party, it would be improper for A to contact C directly without the consent of C's lawyer. See S.C.R. of Prof. Conduct 4.2.

Rule 4.2 prevents a lawyer from communicating without a party about the subject of representation, if the lawyer knows the other party is represented by counsel, without consent of the other lawyer. We have indicated previously that Rule 4.2 generally does not prohibit one party from contacting another party directly, even without the consent of the other party's counsel. S.C. Bar Adv. Op. 90-17 (Sept. 1990). The issue presented by this inquiry is whether the answer differs because a party happens also to be a lawyer.

Rule 4.2 appears to apply only to communications made by a lawyer while representing a client. "In representing a client, a lawyer shall not communicate about the subject of the representation with a party the lawyer knows to be represented by another lawyer..." Rule 4.2 (emphasis added). The Comment to Rule 4.2 explicitly provides that "parties to a matter may communicate directly with each other and a lawyer having independent justification for communicating with the other party is permitted to do so." We conclude that Rule 4.2 does not preclude contact by one individual with another represented individual, even though the contacting party is a lawyer, when the contact is not made in the course of representing a client. Moreover, we interpret the Comment to mean that, as a step-father with an interest in the welfare of his step-children, A may have a sufficient "independent justification" for contacting C.

While, as a general rule, a party in A's position, who happens also to be a lawyer, could contact C directly without ethical impropriety, we believe that the range of A's conduct may nevertheless be limited by A's professional status. First, while A may discuss matters with C, A should avoid conduct that might be viewed as overreaching. Second, A should not act in a manner likely to undermine C's relationship with his lawyer, D. Finally, if C directly instructs A not to contact him about the matter, we believe A should not continue to contact C so as to harass him.

The fact that there is no on-going litigation should not affect this conclusion. Rule 4.2 applies regardless of whether there is an on-going formal proceeding. (See Comment, Rule 4.2) On the facts, presented, however, we do not believe that an appropriate attempt by A to contact C directly would violate Rule 4.2.