A lawyer must be careful when attempting to help an unrepresented opposing party.
I was at a real estate settlement the other day where I represented the mortgage company. There was a lawyer present who was handling the settlement for the title company. The buyer was unrepresented at the settlement. The buyer didn’t know what they were doing. I provided some advice and assistance. Later someone criticized me for doing so. Can I ethically do that?
Good Samaritan acts don’t always count as ethical conduct in the context of the Rules of Professional Conduct. This comment is not to discourage attorneys from helping other people, but help must be put in the context of the Rules of Professional Conduct.
There are specific rules for how an opposing lawyer has to treat an unrepresented person or party. The main rule is Rule of Professional Conduct 4.3, titled “Dealing with Unrepresented Person.” That rule precludes a lawyer from implying that the lawyer is disinterested when the lawyer is representing a client and is dealing with an unrepresented, opposing or adverse party.
The rule precludes a lawyer from giving advice to the person who is not represented by a lawyer other than the advice to secure counsel. This preclusion occurs only if the lawyer knows or reasonably should know that the interest of the person is or has a reasonable possibility of being in conflict with the lawyer’s own client’s interest.
The comments clearly suggest that in a situation where a party is unrepresented, a lawyer for an opposing party has to identify who his or her clients are and, if necessary, explain to the unrepresented client that his or her interest and the unrepresented client’s interest may be opposing.
The rule creates a dichotomy. This dichotomy is highlighted by Comment 2 to the rule. In essence, if the lawyer’s client’s interests are adverse to the unrepresented party, there is a prohibition against giving advice or helping the person other than to tell the person to get counsel. But if there is no reasonable possibility of a conflict, then the lawyer, under limited circumstances, can give advice.
Comment 2 to Rule 4.3 does provide circumstances where the attorney representing a client can have more discussions with the unrepresented person. The comment notes that giving advice and whether or not that would be improper also depends to some extent on the experience and sophistication of the unrepresented client.
But the comment clearly notes that this does not prohibit the lawyer from negotiating the terms of a transaction or settling a dispute with an unrepresented party as long as the lawyer explains that the lawyer represents an adverse party and is not representing or helping the unrepresented person. The lawyer may inform the person of the terms of the settlement or prepare documents that require the unrepresented person’s signature and explain the lawyer’s own views of the documents and then again suggest the person get his or her own independent attorney.
Rule 4.3 is also qualified further by Rule 4.4. Under Rule 4.4, a lawyer representing a client shall not use means that have no substantial purpose other than to embarrass, delay or burden a third party or use methods of obtaining evidence that violate the rights of such a person. That rule would also apply to unrepresented persons.
But going back to the question with the above parameters, it appears that the lawyer representing the mortgage company at the settlement, after the proper warnings and explanations, could provide some legal advice beyond simply, “Get a lawyer,” in terms of perhaps explaining the documents that are being signed, etc.
Of course, the advice should always be qualified that the person should seek independent counsel. But the lawyer must clearly note that the mortgage company’s interest and the unrepresented buyer’s interest might be different on certain documents. Obviously, this is a gray area and the lawyer should be very, very careful in what he or she does. The better practice if one does this is to do everything in writing, although at a settlement that cannot normally be done. Perhaps a follow-up letter should then be sent advising what was said, advising of the lawyer’s role and emphasizing that the person had been told to get independent counsel.
Rule 4.3 creates particular problems for assistant district attorneys who are dealing with defendants who are unrepresented and choose to not be represented. This doesn’t usually happen at a major crimes level where the public defenders are present, but can happen at preliminary hearings where there are minor charges or the person doesn’t qualify for a public defender or court-appointed counsel, but refuses to spend the money to get counsel. The assistant district attorney must be very careful of what he or she tells the unrepresented person, because there is clearly an adverse interest there.
Lawyers who are acting as title agents for title companies and handling settlements in the counties can face Rule 4.3 issues. This is a different situation from where the lawyer is the title agent and also representing one of the people participating at the real estate settlement. That does create a conflict of interest and normally would be prohibited. But the current question is where the lawyer doesn’t represent the person, but is giving legal advice at the settlement. The lawyer has to be extremely careful in doing that even if the lawyer is the title clerk.
Understanding the rules and trying to figure out where the bright lines are are the most important things any lawyer should do in this type of situation. Sometimes, the ethical rules are not as clear as one would like. The key is to try to comply with the rules and make a reasonable effort. A contemporaneous memo setting forth what the lawyer is doing and why often goes a long way to provide protection if there is a complaint later.
Unfortunately, people complain about everything. The Good Samaritan lawyer can expect a complaint later if for some reason the dream house purchased didn’t work out or if there are problems. No one can accept individual responsibility anymore and lawyers are targets because everyone expects a lawyer to be perfect. So any lawyer has to be careful. Gratuitous remarks and trying to help an unrepresented party, although commendable at a human level, can create serious ethical issues if a lawyer is not careful. Rule of Professional Conduct 4.3 should be carefully read and complied with.
There is a narrow exception to attorney-client
privilege for information about potential injury
I am a lawyer who has represented a woman over the years. She has been very jealous of her brothers and sisters. She actually lives with her mother. During the course of the representation of this woman, she has told me on a number of occasions that if her mother dies, she will take and hide expensive jewelry and other valuables in the house and remove money her mother keeps in the house, which is a substantial amount. I just read an obituary notice in the newspaper that the mother has died. Do I have any obligation to say anything to the brothers and sisters of my former client?
Conversations with a client are confidential and within the attorney-client privilege and within Rule of Professional Conduct 1.6, which is the major confidentiality rule. The fact that the representation has ended does not always prevent the attorney-client privilege from applying. But this information was given during the representation of the client. During the representation, apparently the client told the lawyer that if anything happened to her mother she would take substantial assets and hide them or remove them from the estate. This is clearly privileged information.
The termination of representation does not change that.
But there are exceptions under the confidentiality rule, Rule 1.6 that might be applicable. For instance, a lawyer can reveal certain information to the extent that the lawyer reasonably believes it necessary to prevent death or substantial bodily injury or harm.
If the client tells the lawyer he is going to go out and beat up opposing counsel and the lawyer believes that is a reasonable threat, as opposed to someone just blowing off steam, then the lawyer can reveal that information. This exception is not a mandatory requirement to do so under Rule of Professional Conduct 1.6(c).
This is an optional exception. Under the same Rule 1.6(c), a lawyer may reveal information to prevent the client from committing a criminal act that the lawyer believes is likely to result in substantial injury to the financial interests or property of another. That particular exception would appear to apply in this case.
If the lawyer reasonably believed his or her client was going to steal many assets, there would be a substantial injury to the financial interests of the estate and, indirectly, to beneficiaries of the estate.
The key is the reasonableness of the belief and timeliness of the statement. Any lawyer who has practiced for a number of years knows that people sometimes say the stupidest things, particularly during times of anger and frustration. But a wise lawyer knows that most people don’t mean it and are just letting off steam or complaining. The question is whether or not the lawyer thinks there is a reasonable belief.
The other problem with this question is when the former client told the lawyer this information. If this was told 20 years ago, clearly there is no reasonable belief 20 years later. The lawyer would need something more. If the lawyer was told two months ago, that is a different situation.
Comment 11 to Rule 1.6 notes that disclosure under Rule 1.6(c)(2) is only permitted where the lawyer reasonably believes that such threatened action is a crime. The comment is quick to point out that the lawyer cannot “substitute his or her own sense of wrongdoing for that of society at large as reflected in the applicable criminal laws.”
But in the question presented here, the stealing of assets of an estate is clearly in violation of criminal law. The fact that the client who wants to steal the money is a beneficiary and entitled to some of it does not preclude criminal prosecution if the former client takes more than he or she would be entitled to under the estate distribution plan.
It again must be emphasized that this exception to confidentiality is not mandatory. But it would appear to be the right thing for the lawyer to do if the lawyer reasonably believed the theft was going to occur or it involved a criminal act that was likely to result in substantial injury to the financial interests or property of another.
Whatever a lawyer does, the lawyer should document his or her thought process in a memo to the file and/or perhaps consult someone, either within the lawyer’s firm or outside the lawyer’s firm, who is knowledgeable on professional legal ethics for advice.
In conclusion, no one relishes the thought of having to reveal confidential information of a client. Every lawyer has a duty to protect as strongly as he or she can the attorney-client privilege and its confidentiality, because failure to do so would undermine the ability of a lawyer to function if the client cannot trust the lawyer to keep confidences.
But there are limited circumstances where people can be severely injured by someone. If a lawyer knows through confidential information that it is going to occur and reasonably believes it is true, then the lawyer may reveal that information to the people who will be affected. •
Chester County lawyer Samuel C. Stretton has practiced in the area of legal and judicial ethics for more than 35 years. He welcomes questions and comments from readers. If you have a question, call Stretton directly at 610-696-4243 or write to him at 301 S. High St. P.O. Box 3231, West Chester, Pa. 19381.