California Lawyers Association

Ethics Spotlight: The Importance of Being Disinterested: Treating Unrepresented Persons with Care

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November 2021

By Kevin Mohr[1]

We were told at any early age not to talk to or to trust strangers (or to accept candy from, or get into a car with them). We might be tempted to assume that any person so schooled would have, as an adult, extended that lesson to include unfamiliar lawyers. If so, a person not represented by a lawyer should be counted on neither to trust nor to seek guidance from an unfamiliar lawyer or one representing an opposing party – a kind of Caveat Emptor (or caveat advocatus). The Rules of Professional Conduct, however, make no such assumption. Instead, rule 4.3 provides explicit direction on how a lawyer representing a client is expected to interact with an unrepresented person.

Rule 4.3, adopted in 2018, is one of four rules in Chapter 4 of the Rules of Professional Conduct (“Rules” or “California Rules”), titled “Transactions with Persons Other Than Clients.” Each rule sets boundaries for lawyers in their dealings with such persons. Rule 4.1 prohibits lawyers from making false statements to a third person. Rule 4.2 (former rule 2-100) prohibits a lawyer who represents a client from communicating about the subject of the representation with a person represented by a lawyer in that matter unless that person’s lawyer consents; and rule 4.4 addresses a lawyer’s duties concerning inadvertently transmitted writings. Although only rule 4.2 had a distinct counterpart rule in the former Rules, rule 2-100, the other Chapter 4 rules do not cover new territory. For example, the subject of rule 4.1 also comes within the purview of Bus. & Prof. Code § 6106’s prohibition on acts “involving moral turpitude, dishonesty or corruption.”[2] Similarly, rule 4.4’s subject matter is comprehensively addressed in case law.[3] Further, the concept underlying rule 4.3 had a precursor rule in a more limited context in the former rule concerning organizational clients, rule 3-600(D) [current rule 1.13(d)].[4] The Chapter 4 rules are interrelated; at its core, rule 4.3 prohibits a lawyer from misleading an unrepresented person, the subject of rule 4.1. If a person is represented, rule 4.2 – and not rule 4.3 – applies. As will become apparent, however, which rule applies is not always easily determined.

Rule 4.3 itself comprises two paragraphs, both of which apply only if a lawyer is communicating (i) “on behalf of a client” with (ii) an unrepresented person (“U.P.”). Paragraph (a) includes three distinct parts or prohibitions. First, the rule prohibits a lawyer from stating or implying that the lawyer is “disinterested.” Second, where the lawyer “knows* or reasonably should know*” that the U.P. misunderstands the “lawyer’s role in the matter,” the lawyer must make “reasonable* efforts to correct the misunderstanding.”[5] Third, the lawyer is prohibited from giving legal advice to a U.P. other than the advice to retain a lawyer, if “the lawyer knows* or reasonably should know* that the interests of the U.P. “are in conflict with the interests of the client.” Finally, paragraph (b) prohibits the lawyer from seeking to obtain from an unrepresented person “privileged or other confidential information” that the lawyer “knows* or reasonably should know*” the person may not reveal without violating a duty to another or which the lawyer is not otherwise entitled to receive.

What should we make of these four requirements? It is helpful first to understand what the rule is intended to accomplish. Comment [1] of rule 4.3 provides “[t]his rule is intended to protect unrepresented persons,* whatever their interests, from being misled when communicating with a lawyer who is acting for a client.” The concern is that a U.P., particularly one who is not experienced in legal matters, might assume a lawyer is “disinterested” in loyalties or a “disinterested authority” on what the law is, and could be misled into making decisions adverse to his or her interests in reliance on the lawyer’s statements.[6] With this understanding of the rule’s purpose, we can break down the rule into its component parts to better appreciate how it might be applied and how a lawyer can avoid running afoul of its prohibitions.

“On Behalf of a Client.” First, we might ask what it means to communicate “on behalf of a client.” As lawyers, we represent clients and so our communications made in representing a client will necessarily be “on behalf of a client.” That concept is straightforward. But are there other situations when a lawyer might not be communicating with a U.P. on a client’s behalf? The answer is yes. For example, Michigan Rule 4.3 was held not to apply to a lawyer representing himself in a real estate transaction. Suck v. Sullivan (Mich.App. 8/27/1999), No. 207488, 1999 WL 33437564. Closer to home, a defendant corporation’s CEO was not prohibited from communicating with employees of the plaintiff corporation about settlement where the CEO, although a lawyer, had never litigated on behalf of the defendant corporation. HTC Corp. v. Tech. Props. Ltd. (N.D.Cal. 2010) 715 F.Supp.2d 968.[7] This of course does not mean that a lawyer is free to mislead when proceeding pro se in a litigation or transactional matter. Such conduct would likely run afoul of Bus. & Prof. Code §§ 6106 or 6128(a).

“Person Who Is Not Represented by Counsel.” The rule applies when a person is not represented by counsel. This also appears to be a relatively straightforward concept – either a person is or is not represented by a lawyer. However, there are situations where a person might or might not be deemed by operation of law to be represented – depending on the specific circumstances. For example, when an organization is involved in a legal matter, some constituents of the organization are deemed represented by the organization’s lawyer regardless of whether they have explicitly entered into a lawyer-client relationship with that lawyer. Rule 4.2(b) provides:

(b) In the case of a represented corporation, partnership, association, or other private or governmental organization, this rule prohibits communications with:

(1) A current officer, director, partner,*or managing agent of the organization; or

(2) A current employee, member, agent, or other constituent of the organization, if the subject of the communication is any act or omission of such a person* in connection with the matter which may be binding upon or imputed to the organization for purposes of civil or criminal liability.

Thus officers, directors, etc. of a corporation would be deemed represented regardless of whether such person has formally entered a lawyer-client relationship with the corporation’s lawyer. Absent the consent of the corporation’s lawyer, they are off-limits to other lawyers involved in the matter under rule 4.2. So also are any other non-managerial constituents of the organization if the lawyer is seeking to elicit information about any act or omission by the constituent that “may be binding upon or imputed to the organization.” For example, if your client in an employment discrimination suit were to identify the client’s immediate supervisor as the person who has discriminated against the client, that person, even if not part of the managerial contingent, would be deemed represented. Other non-managerial employees, etc., unless represented by their own lawyer, would be fair game for the lawyer, but rule 4.3 would then apply.

In addition, sometimes parties who represent themselves pro se nevertheless will retain a lawyer for some aspects of a legal matter but not others, i.e., they will employ a lawyer for limited scope representation. That means that some of the time they might be “represented by counsel” but at other times they are “unrepresented.” What’s a lawyer representing an opposing party to do in those circumstances? Fortunately, the California Court of Appeal has weighed in on this issue. In McMillan v. Shadow Ridge at Oak Park Homeowners Ass’n (2008) 165 Cal.App.4th 960, the court held that the lawyer for the defendant did not violate former CRPC 2-100 [current CRPC 4.2] by communicating directly with plaintiff, a nonlawyer appearing pro se who had engaged a lawyer for assistance on some aspects of the matter, but where the nonlawyer still remained counsel of record. Ethics opinions in other jurisdictions are in accord. See, e.g., Nevada State Bar Ethics Opn. 34 (2009); Kansas Bar Ethics Opn. 09-01 (2009); Utah Bar Ethics Opn. 2008-1 (In a limited scope representation, an “opposing counsel acts reasonably in proceeding as if the opposing party is not represented, at least until informed otherwise.”) See also ABA Formal Ethics Opn. 472 (2015).

The important point here is that unless a person is deemed represented by operation of rule 4.2, a lawyer representing a client should be able to rely on the U.P.’s representation that the U.P. is indeed not represented by counsel. Otherwise, rule 4.2 would apply and the lawyer will need to communicate only through counsel. Similarly, if a person has retained a lawyer on a limited scope basis, a lawyer can communicate with them, so long as the person remains counsel of record.

“Distinterested.” The first sentence of CRPC 4.3 prohibits a lawyer representing a client from stating or implying the lawyer is “disinterested” when communicating with a U.P. about the matter for which the lawyer was retained. What does “disinterested” mean? Unlike other terms in CRPC 4.3, the Rules do not provide a definition of “disinterested” in the Terminology rule, rule 1.0.1. As noted, however, Comment [1] to ABA Model Rule 4.2 explains “disinterested” to mean disinterested as to loyalties or a disinterested authority on the law. 

Case law from other jurisdictions provide us with an inkling of what lawyers should not do to avoid being found to have improperly stated or fostered the impression they are “disinterested” when in fact they are not. An example of the former is found in In re Air Crash Disaster (N.D.Ill. 1995) 909 F.Supp. 1116, where plaintiffs’ lawyers sent survey questions to unrepresented airline pilots that they described to be part of an “independent survey” of the pilots, whose names they asserted were “provided to us by the FAA.” As a result, the survey results were excluded as a sanction for a violation of Illinois Rule 4.3. 

An example of implying “disinterest” appears in In re Hansen (Minn. 2015) 868 N.W.2d 55, where a lawyer, representing the husband, met with husband and wife, who was unrepresented, to discuss their divorce. The court found that lawyer never corrected the wife’s mistaken belief that he was representing her as well as the husband. In Hansen, both parties were seeking a dissolution of the marriage. Apparently the court reasoned that the lawyer should have realized that under those circumstances, where the parties’ overall objective was similar, the situation was ripe for confusion about whom the lawyer represented. Put another way, in a similar situation, i.e., where a lawyer represents only one person but both persons have a similar goal, there is the real potential that the U.P. will misinterpret where the lawyer’s loyalties lie. In those situations, it is probably best from the outset for the lawyer to identify who the lawyer’s client is so there is no misunderstanding. This in fact is what Comment [1] to ABA Model Rule 4.3 suggests.[8]

Giving “Legal Advice.” The concern here relates to the third sentence or requirement of rule 4.3(a), which provides: “If the lawyer knows* or reasonably should know* that the interests of the unrepresented person* are in conflict with the interests of the client, the lawyer shall not give legal advice to that person,* except that the lawyer may, but is not required to, advise the person* to secure counsel.” Probably the greatest concern expressed with regard to rule 4.3 when the rule was being considered for adoption in California was that statements about a client’s legal position a lawyer makes to a U.P. might be misinterpreted by the U.P. as legal advice, resulting in the lawyer potentially being subject to discipline. Whether as part of settlement discussions or otherwise, lawyers often state their client’s legal position to opposing counsel, who presumably will recognize that the first lawyer is not pretending to give them legal advice. The issue under rule 4.3 is what a U.P. might make of such a statement. Comment [2] to rule 4.3 clarifies what a lawyer can and cannot state. Comment [2] begins by explaining the rationale for the third sentence:

[2] Paragraph (a) distinguishes between situations in which a lawyer knows* or reasonably should know* that the interests of an unrepresented person* are in conflict with the interests of the lawyer’s client and situations in which the lawyer does not. In the former situation, the possibility that the lawyer will compromise the unrepresented person’s* interests is so great that the rule prohibits the giving of any legal advice, apart from the advice to obtain counsel.

The comment then clarifies that “[a] lawyer does not give legal advice merely by stating a legal position on behalf of the lawyer’s client.” This sentence should assuage concerns that a lawyer might be subject to discipline simply by stating the client’s legal position. But, as with many things, the devil is in the details. There are numerous ways in which one might state the client’s legal position. As an example, compare a lawyer stating “the law is crystal clear; you are in violation of [Statute section]. Your continued conduct will only result in you running up damages that you will have to pay my client” with “My client’s position is that you are violating [Statute section]. We believe from our study of cases that your continued violation of the law will result in substantial damages that a court can award my client.” The second statement is probably a safer way to state the client’s legal position without violating the prohibition in the third sentence against providing legal advice. It emphasizes the position is that of your client, not an indisputable statement of the law or the consequences of its violation.

Comment [2] also provides the following explication of what a lawyer can and cannot do with regards to settlement:

This rule does not prohibit a lawyer from negotiating the terms of a transaction or settling a dispute with an unrepresented person.* So long as the lawyer discloses that the lawyer represents an adverse party and not the person,* the lawyer may inform the person* of the terms on which the lawyer’s client will enter into the agreement or settle the matter, prepare documents that require the person’s* signature, and explain the lawyer’s own view of the meaning of the document and the underlying legal obligations.

Again, the devil is in the details, and it is possible for a lawyer to overreach in “negotiating” a settlement. Consider Yates v. Belli Deli (N.D.Cal. 8/13/2007) 2007 WL 2318923. In Yates, a case involving an alleged violation of the Americans with Disabilities Act, a letter sent by plaintiff’s counsel to unrepresented business defendants stated inter alia that defense counsel the businesses might retain often run up fees that would be better spent on remedial repairs. It concluded by stating “We hope you accept this letter as friendly advice” and suggested early settlement with plaintiff was in the business’s best interest. The court, citing to ABA Model Rule 4.3, concluded “[i]t is difficult to see how this letter sent to defendants could be anything but giving advice” not to retain a lawyer but instead to enter into an expedited settlement, notwithstanding that the letter also included, in bold type, the following postscript: “Notice: Nothing in this letter should be construed to advise you not to retain legal counsel or dissuade you from so doing.” The letter in Yates would appear to be a plain violation of rule 4.3’s prohibition on giving legal advice. The court in fact noted that “counsel’s letter seems calculated to coerce a settlement and to deter the target from obtaining his or her own counsel.” Is there anything that the drafters of the letter could have done to avoid the court’s conclusion? Plaintiff’s lawyer probably should have avoided denigrating defense lawyers generally and simply stated the terms on which the plaintiff was willing to settle, as provided in Comment [2]. Going beyond a statement of the plaintiff’s position and suggesting alternatives to the unrepresented businesses was a violation of rule 4.3.

“Confidential information.” Paragraph (b) sets out the fourth requirement of rule 4.3. It prohibits a lawyer from seeking to obtain from an unrepresented person “privileged or other confidential information” that the lawyer “knows* or reasonably should know*” the person may not reveal without violating a duty to another or which the lawyer is not otherwise entitled to receive. Privileged information would be any information that is protected by a privilege under the Evidence Code or by federal common law. Although the U.P. is unrepresented, he or she might be privy to privileged communications from a prior matter that is related to the current matter. For example, the U.P. might be a former employee of an organization who has acquired privileged information during the employment. The privilege belongs to the organization, not the individual employees who might have been made privy to it. Another possibility is a U.P. who has retained a lawyer for limited scope representation. A lawyer would be prohibited from seeking to obtain such information during the lawyer’s permitted communication with the U.P. 

The rule also does not explain what kind of “other confidential information” might be intended by paragraph (b). One possibility is information that the person is under a duty to maintain confidential under, for example, a non-disclosure agreement or computer-use policy (e.g., revealing a password to the employer’s server). There are probably other types of confidential information you can think of that are protected by contract. The duty not to elicit such information would similarly apply.

Conclusion. Although rule 4.3 was not adopted as a stand-alone rule in California until 2018, the concept underlying is not new. In the context of an organization, an organization’s lawyer traditionally has been cautioned that unrepresented constituents of the organization might misperceive whom the lawyer represents, and required to take reasonable steps to clarify whom the lawyer represents. Rule 4.3 has expanded the duty to include any situation in which an unrepresented person might incorrectly believe that the lawyer is “disinterested.” More important, the rule’s prohibition is not just against the lawyer affirmatively misleading such a person. In addition to prohibiting such active misleading, rule 4.3 requires our lawyer antennae to be sensitive to an unrepresented person’s misapprehension of our role in a matter and to remedy any such misperception. The best approach is probably to remind the person at the outset of any communication, whether oral or written, that the lawyer does not represent the person.

[1] Professor, Western State College of Law, Irvine, California. Professor Mohr is a founding member of the CLA’s Ethics Committee. The views expressed are his own.

[2] In addition, Bus. & Prof. Code § 6128(a) makes it a misdemeanor offense for any attorney who is guilty of any deceit or collusion, or who consents to any deceit or collusion, with intent to deceive any “party.”

[3] See, e.g., McDermott Will & Emery LLP v. Superior Court (2017) 10 Cal.App.5th 1083, and cases discussed therein.

[4] Former rule 3-600(D) provided:

(D) In dealing with an organization’s directors, officers, employees, members, shareholders, or other constituents, a member shall explain the identity of the client for whom the member acts, whenever it is or becomes apparent that the organization’s interests are or may become adverse to those of the constituent(s) with whom the member is dealing. The member shall not mislead such a constituent into believing that the constituent may communicate confidential information to the member in a way that will not be used in the organization’s interest if that is or becomes adverse to the constituent. (Italics added.)

The italicized sentence has been deleted; the duty not to mislead can be found in current rule 4.3, and applies more generally to any unrepresented person, not just an unrepresented constituent of an organizational client.

[5] Whenever an asterisk is affixed to a word or phrase in the Rules, it signals that the term is defined in the Terminology rule, rule 1.0.1.

[6] See ABA Model Rule 4.3, Cmt. [1].

[7] Although the court was interpreting former rule 2-100 [current CRPC 4.2], which addresses communications with represented parties, the court focused on whether the CEO was “representing a client” at the time of the communication and held he was not.

[8] ABA Model Rule 4.3, cmt. [1], provides in relevant part: “In order to avoid a misunderstanding, a lawyer will typically need to identify the lawyer’s client and, where necessary, explain that the client has interests opposed to those of the unrepresented person.” It should be noted that the California Rules include substantially fewer comments than do the ABA Model Rules or most rules adopted in other jurisdictions. This is because the California Rules are intended primarily as disciplinary rules, not as a restatement of the law of lawyering intended to provide guidance as to best practices. See CRPC 1.0(a) (“The following rules are intended to regulate professional conduct of lawyers through discipline.”) Consequently, the California version of rule 4.3 does not include the above-quoted language from the Model Rule. That does not mean, however, that the ABA Model Rules cannot be consulted for guidance. See CRPC 1.0, Cmt. [4]. Here, the guidance provided is particularly apt.

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