4.3 Dealing with Unrepresented Person

In dealing 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 misunderstands the lawyer’s role in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding. The lawyer shall not give legal advice to an unrepresented person, but may provide legal information to and may negotiate with the unrepresented person. The lawyer may recommend that such unrepresented client secure counsel, if the lawyer knows or reasonably should know that the interests of such a person are or have a reasonable possibility of being in conflict with the interests of the client.


COMMENT

[1] An unrepresented person, particularly one not experienced in dealing with legal matters, might assume that a lawyer is disinterested in loyalties or is a disinterested authority on the law even when the lawyer represents a client. 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. For misunderstandings that sometimes arise when a lawyer for an organization deals with an unrepresented constituent, see Rule 1.13(f).

[2] The Rule distinguishes between situations involving unrepresented persons whose interests may be adverse to those of the lawyer’s client and those in which the person’s interests are not in conflict with the client’s. 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 advice. Whether a lawyer is giving impermissible advice may depend on the experience and sophistication of the unrepresented person, as well as the setting in which the behavior and comments occur. This Rule does not prohibit a lawyer from negotiating the terms of a transaction or settling a dispute with an unrepresented person, or recommending an unrepresented person secure counsel. So long as the lawyer has explained that the lawyer represents an adverse party and is not representing the person, the lawyer may inform the person of the terms on which the lawyer’s client will enter into an agreement or settle a matter, prepare documents that require the person’s signature and explain the lawyer’s own view of the meaning of the document or the lawyer’s view of the underlying legal obligations.

[2A] This rule is not intended to limit negotiations between a lawyer and an unrepresented person, nor limit information provided by the lawyer to an unrepresented person.


REPORTER’S NOTES:

Model Rule 4.3 (2002) provides guidance to a lawyer who is dealing on behalf of a client with a person who is not represented by counsel. The Maine Bar Rule that comes closest to addressing the same issues is M. Bar R. 3.6(i), entitled“Avoiding Misreliance.” Both rules attempt to make certain that unrepresented persons are not misled about the lawyer’s role in a matter, and require a lawyer to take affirmative steps to ensure that misunderstandings about a lawyer’s allegiances and duties are rectified. The Task Force thought that Model Rule 4.3’s formulation was clearer and more direct and accordingly recommended the adoption of Model Rule 4.3 (2002) as written.

The Task Force discussed the issues arising when the lawyer’s fee is paid in whole or in part by an unrepresented party, for example as often occurs in a real estate transaction where the financing institution designates counsel whose fees are paid by the purchasing party. It is the lawyer’s responsibility to clarify which party the lawyer is representing, notwithstanding the source of the lawyer’s fee.