In today’s fast-paced, costly world of commerce, some believe they can deal with legal matters on their own by communicating directly with an opposing party or lawyer. I see it every day. Even people who have used lawyers before think they can deal with a matter more efficiently or affordably on their own than if they hire a lawyer to help. But this strategy almost always backfires. At a minimum, an outcome is reached on terms much less favorable to the unrepresented party. But matters can also get worse.
It is a particularly perilous when someone believes they can deal with an opposing party’s lawyer directly. An infamous proverb comes to mind: a lawyer who represents himself has a fool for a client. How much more is this true for a non-lawyer who represents himself in dealing with a lawyer in matters involving material risk and cost.
First, someone dealing with an opposing lawyer may, in the very effort to resolve an issue, make matters much worse, not just by failing to achieve a result but, in the process, making factual or legal admissions against their own interest and creating compromising evidence that didn’t exist before — the communications at hand. This is particularly risky if the matter cannot be resolved without litigation or is already in litigation. And even if such admissions are not immediately used in litigation, they may lie in wait for months or years before they come back to haunt the party who made the admission. Consider that when an admitting party is represented by counsel, even negative statements made by the party’s lawyer do not work against the client because the client is not the one who made the statements. So, at worst, the lawyer misspoke, but this has not really harmed the client evidentiarily. The client can always clarify the matter later should the need arise.
Next, a party dealing with an opposing lawyer may be out-foxed by an opposing lawyer no matter how straightforward s/he may seem, and no matter how smart, sophisticated or capable the party believes s/he is. This is not necessarily because the opposing lawyer is smarter or more sophisticated than the unrepresented party. Because the opposing lawyer is not personally invested in the matter, the lawyer has a broader, more objective perspective of the facts and issues in play and how these might be used to gain advantage for their client. The unrepresented party is necessarily restricted by their myopia which, by definition, they cannot see because they lack the objectivity provided by a disinterested professional.
The analysis is not complete, however, without a brief discussion of some applicable legal ethics rules (and, yes, some may think that’s an oxymoron) which are supposed to guide an attorney’s ethical conduct vis-a-vis their own clients and other parties. For example, these rules typically bar lawyers from dealing directly with a party who is represented by counsel; in California, this is in the Rules of Professional Conduct, Rule 2-100. However, these rules do not prohibit lawyers from dealing with an opposing party if the lawyer does not know that the other party is already represented by counsel. And, of course, if the other party affirmatively discloses that they are not represented by counsel, there is no rule which prohibits a lawyer from using his trained skills against the unrepresented party in order to obtain the best possible result for his client. A good lawyer going beyond the letter of the law might suggest that the unrepresented party get the advice of their own counsel before concluding a matter with the represented party, but there is no legal obligation to do this. Stated otherwise, it is not a lawyer’s or his client’s responsibility to be fair or “watch-out” for another party’s interests in any way. That is the job of the other party, so they proceed at their own risk if they negotiate on their own without utilizing their own lawyer.
These concepts may seem obvious to some, but they are disregarded by smart and savvy people every day. Whether this is due to frugality, impatience or over-confidence, it is a pitfall for even the most experienced and sophisticated of parties, including lawyers themselves. When dealing with important business or legal matters, it is almost always best to hire a lawyer. The prudent and discerning consumer of legal services can frequently save much more money, time and hassle by engaging counsel. Talking out of turn is bad; talking when you really shouldn’t be taking a turn is worse. Let your lawyer do the talking — it’s a snap!
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Rule 2-100 Communication With a Represented Party:
(A) While representing a client, a member shall not communicate directly or indirectly about the subject of the representation with a party the member knows to be represented by another lawyer in the matter, _unless the member has the consent of the other lawyer_.