No-Contact Rule

FOURTH COURT UPDATE

By Justice Irene Rios

In a recent case of first impression, we held that Rule 4.02 of the Texas Disciplinary Rules of Professional Conduct prohibits a pro se lawyer from contacting an opposing party represented by counsel without the consent of that party’s counsel. Ruth v. Comm’n for Law. Discipline, 04-22-00796-CV, 2024 WL 3056655, at *5 (Tex. App.—San Antonio June 20, 2024) (no pet. h.).

In Ruth, the Commission for Lawyer Discipline initiated a disciplinary action against Ruth for alleged violations of the disciplinary rules in a prior disciplinary action the Commission took against Ruth. See id. at *1 & n.1, n.2. In that litigation, Ruth appeared pro se and directly served individual members of the Commission with two motions by adding them to the e-service list. See id. at *1. Disciplinary counsel for the Commission informed Ruth that this conduct was improper communication with her client and asked Ruth to cease the communications. See id. Ruth continued to directly serve filings on members of the Commission and wrote a letter directly to the Commission chair. See id.

After Ruth failed to heed counsel’s warning to cease communications with her client, the Commission initiated the disciplinary proceeding at issue in Ruth, alleging Ruth violated the no-contact rule under Rule 4.02(a). See id.; see also Tex. Disciplinary Rules Prof’l Conduct R. 4.02(a), reprinted in Tex. Gov’t Code Ann., tit. 2, subtit. G, app. A (Tex. State Bar R. art. X, § 9).

Rule 4.02(a) of the Texas Disciplinary Rules of Professional Conduct states:

In representing a client, a lawyer shall not communicate or cause or encourage another to communicate about the subject of the representation with a person, organization or entity of government the lawyer knows to be represented by another lawyer regarding that subject, unless the lawyer has the consent of the other lawyer or is authorized by law to do so.

Tex. Disciplinary Rules Prof’l Conduct R. 4.02(a).

Ruth argued the prefatory clause “[i]n representing a client” shows the supreme court intended for Rule 4.02(a) to apply only to attorneys who are representing a client’s interest, as opposed to their own interest. See Ruth, 2024 WL 3056655, at *2. The Commission argued Ruth was representing himself as a client, and therefore, the no-contact rule applies to him regardless of his status as a pro se litigant. See id. Applying the principles of statutory construction while considering other resources, ethics opinions, and other jurisdictions’ approaches to this issue, we concluded the no-contact rule applies to pro se lawyers for two reasons. See id. at *2-4.

First, the plain language of Rule 4.02 applies to a pro se lawyer because a pro se lawyer “does represent a client when representing himself or herself in a matter[.]” See Runsvold v. Idaho State Bar, 925 P.2d 1118, 1120 (Idaho 1996); see also In re Disciplinary Action Against Haley, 126 P.3d 1262, 1269 (Wash. 2006) (holding that a lawyer acting pro se is representing a client for purposes of the no-contact rule). “[A]n attorney who proceeds pro se in a matter functionally occupies the roles of both attorney and client.” In re Steele, 181 N.E.3d 976, 980 (Ind. 2022); see also Sandstrom v. Sandstrom, 880 P.2d 103, 109 (Wyo. 1994). It is not possible for a pro se lawyer to take off the lawyer hat and circumvent the no-contact rule by communicating solely as a client. See ABA Comm. on Ethics & Pro. Resp., Formal Op. 22-502 (2022).

Second, the purpose of Rule 4.02 is “to preserve the integrity of the client-lawyer re-

lationship by protecting the represented party from the superior knowledge and skill of the opposing lawyer.” In re News Am. Pub., Inc., 974 S.W.2d 97, 100 (Tex. App.—San Antonio 1998, orig. proceeding). The rule “is directed at efforts to circumvent the lawyerclient relationship existing between other persons, organizations or entities of government and their respective counsel.” Tex. Disciplinary Rules Prof’l Conduct R. 4.02 cmt. 1. Therefore, a party who has employed counsel as an intermediary between himself and opposing counsel should not lose the protection of the rule merely because opposing counsel is also a party to the litigation. See Ruth, 2024 WL 3056655, at *4.

Based on these reasons, as more thoroughly explained in the opinion, we concluded Rule 4.02 prohibits a pro se lawyer from contacting an opposing party without the consent of that party’s counsel. See id. at *5.

Justice Irene Rios has served on the Fourth Court of Appeals since January 2017. Justice Rios previously served as Judge of County Court at Law No. 10, in Bexar County, for fourteen years. Prior to her appointment to the bench, Justice Rios spent nine years in private practice. She is a Fellow of the Texas Bar Foundation and a Fellow of the San Antonio Bar Foundation, and she has served as a Special Master of major litigation.