Following is the 20th post in a series about recent changes to the California Bar Association’s Rules of Professional Conduct (RPC). This rule is found in Chapter 4, which is titled “Transactions with Persons Other than Clients.”
As this is a new rule, it is not a revision of a previous rule. CBA’s Rule 4.3 addresses “communication with an unrepresented person” and can be seen here:
Rule 4.3 Communicating with an Unrepresented Person
(a) In communicating on behalf of a client with a person who is not represented by counsel, a lawyer shall not state or imply that the lawyer is disinterested. When the lawyer knows or reasonably should know that the unrepresented person incorrectly believes the lawyer is disinterested in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding. 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.
(b) In communicating on behalf of a client with a person who is not represented by counsel, a lawyer shall not seek to obtain privileged or other confidential information 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.
In CBA’s Rule 4.3, as set forth above, the keyword is “disinterested.” The first part of this rule makes it clear that if a lawyer communicates with a person who is without counsel – and if the communication is on behalf of his or her own client – the lawyer MUST ensure that the non-represented person is aware the lawyer has an interest in the matter at hand … and thus, is not entitled to give legal advice on the matter. In other words, the lawyer is not a disinterested party. The only advice the lawyer could give to the non-represented party is for that person to secure their own counsel.
The second part of the rule warns that a lawyer who is connected with a matter, and who is speaking on behalf of his or own client, MUST NOT try to gain privileged or confidential information from a non-represented party, especially when the information would violate that person’s duty to another.
Rule 4.3 of the American Bar Association’s (ABA) RPC, titled “Dealing with an Unrepresented Person,” is similar to the CBA’s version of this rule. The main difference between the ABA’s and the CBA’s versions is that the CBA rule is split into two parts – subdivisions (a) and (b), while the ABA rule is not.
Benefit: Generally speaking, this rule protects a client from being taken advantage of by an unscrupulous lawyer who may try to gain information to which he or she is not entitled. It also alerts the client to the lawyer’s duty to inform the client about the lawyer’s status in relation to the matter at hand.
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Rules of Professional Conduct, California Bar Association, American Bar Association, Legal Malpractice, Client Rights, Legal Representation, Confidentiality, Disinterested Party