Chapter 4. Ethics & Professionalism – Communications with unrepresented persons

4:11. Communications with Unrepresented Persons

Rule of Professional Conduct 4.3 provides that:

• 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; and
  • Give advice other than the advice to secure counsel, if a 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.

Rule 4.3 encompasses any and all unrepresented persons a lawyer may contact while representing clients whose interests may conflict with those of the lawyer’s client. Interviewing unrepresented persons, be they witnesses, opponents, or potential opponents, is permitted as long as the lawyer clearly states who he is representing and why, that he is not looking out for the interests of the person being interviewed, does not make an inaccurate or misleading statement of law, and does not give any legal advice except to secure independent legal counsel. The propriety of submitting papers to an unrepresented party for signature depends upon the sometimes difficult distinction of whether the lawyer’s actions are categorized as the rendition of legal advice, or mere communication.¹ A lawyer in the “precarious” position of presenting documents to an unrepresented person for signing should at least consider the prudence of giving the unrepresented party written notice clarifying the lawyer’s limited interests.²

Prior to its amendment in 2011, Rule 4.3 prohibited attorneys from contacting any potentially adverse parties (or their relatives) in matters concerning personal injury or wrongful death claims for a period of 30 days after an “accident or disaster.” While the prohibition was written in neutral terms and may have been intended to protect injured parties from overreaching, in practice the rule contributed to an uneven playing field where insurance adjusters, not bound by the ethical rules, could contact their own insureds as well as persons injured by their insureds either immediately or, in some cases, after 10 days, and seek recorded statements or even a release,³ whereas attorneys for injured parties were barred from communicating with the alleged tortfeasor even to seek preservation of evidence or to obtain insurance information. This restriction is no longer in effect, although counsel must still ensure that any contact is in compliance with the remaining provisions of the rule.

¹ State Bar of Georgia, Rules of Professional Conduct, Rule 4.3.

² Charles W. Wolfram, Modern Legal Ethics §11.6.3 at 617 (1986).

³ See O.C.G.A. §51-1-35; Hardigree v. McMichael, 181 Ga. App. 583, 353 S.E.2d 78 (1987) (enforceable release obtained from non-hospitalized injury victim by creating false impression of scope of release). But see Cravey v. Johnson, 229 Ga. App. 130, 493 S.E.2d 536 (1997) (jury question on voiding release obtained from seriously injured person, confined to hospital bed at home and on mind-numbing pain medication, by misrepresenting coverage information).

On May 22, 2018, former State Bar of Georgia president Ken Shigley will be a candidate for election to the Georgia Court of Appeals. The only other candidate is Ken Hodges, a former Dougherty County District Attorney. Ken Hodges was the Democratic Party nominee for Attorney General in 2010.