Ethics & Professional Compensation Committee

ABI Committee News

What are Your Obligations in Dealing with Unrepresented Parties?

Bankruptcy lawyers often deal with unrepresented persons. For example, in more than 10 percent of consumer cases, the debtor has no lawyer. [1] Counsel for an unrepresented debtor’s secured creditors may have dealings with the debtor regarding motions for relief from stay or reaffirmation agreements. Likewise, lawyers who represent consumer debtors may have dealings with unrepresented creditors regarding filing proof of claims or reaffirmation agreements or other bankruptcy matters. In business cases, debtor’s counsel must often deal with the unrepresented members of management and unrepresented creditors.

To mitigate the risk of an ethical breach in dealing with unrepresented persons, bankruptcy lawyers should be familiar with their state’s ethics rule regarding dealings with unrepresented persons. As most states now have adopted a version of the ABA’s Model Rules of Professional Conduct, this article focuses on Rule 4.3 of the Model Rules. Practitioners should consult their own state’s ethics rules to confirm that Rule 4.3 applies and to determine whether it was modified when adopted in their state.

The object of Rule 4.3 is to prevent overreaching by lawyers. [2] As noted in the comment to Rule 4.3, “[a]n 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.”

Rule 4.3 has two components. The first requires that a lawyer who is representing a client in dealing with an unrepresented person must not state or imply that the lawyer is disinterested. If the lawyer knows or suspects that the unrepresented person misunderstands the lawyer’s role, the lawyer must endeavor to correct the misunderstanding. A lawyer must act reasonably in recognizing whether a misunderstanding has arisen and in correcting any misunderstanding.

The second component generally prohibits a lawyer from giving legal advice to the unrepresented person if the interests of the unrepresented person actually or potentially conflict with the interests of the lawyer’s client. The lawyer must again act reasonably in recognizing whether an actual or potential conflict exists. The only exception to the prohibition on giving legal advice is that the lawyer may advise the unrepresented person to secure counsel.

A lawyer can take affirmative steps to avoid violation of the first component of Rule 4.3 by clearly communicating the lawyer’s role. For example, a lawyer representing a secured creditor in a bankruptcy case filed by a pro se debtor should inform the debtor in writing that the lawyer represents the secured creditor and that the lawyer does not represent the debtor. Failing to clearly communicate the lawyer’s role may result in a violation of Rule 4.3. [3]

Assuring compliance with the prohibition on providing legal advice is more difficult because the term “legal advice” is not defined in Rule 4.3. To the contrary, the comment to Rule 4.3 indicates that determining whether information constitutes “legal advice” requires a subjective analysis. The comment provides that determining whether advice is impermissible “may depend on the experience and sophistication of the unrepresented person, as well as the setting in which the behavior and comments occur.” [4]

The comment does provide counsel with some comfort in recognizing that Rule 4.3 does not prohibit a lawyer from negotiating the terms of a transaction or settling a dispute with an unrepresented person, provided counsel abides by the first component of the rule by clearly explaining that the lawyer represents an adverse party and is not representing the person. Thereafter, in this limited context, the lawyer may further explain “the lawyer’s own view” as to the meaning of the settlement documents or “the lawyer’s view of the underlying legal obligations.” This aspect of the comment may be particularly helpful to counsel in effecting a reaffirmation agreement from a pro se debtor.

Unfortunately, the comment merely begs the question of whether counsel may provide an unrepresented adversary with “the lawyer’s view” on other issues such as the merits of an unrepresented person’s adverse position. For example, may counsel offer to an unrepresented debtor the lawyer’s “view” that the lawyer’s client is entitled to relief from the automatic stay?

Given that Rule 4.3 focuses on avoiding the false impression that the lawyer is acting in accordance with the unrepresented party’s interests or is neutral in the dispute, the lawyer may be free to advocate the client’s position in communications with an unrepresented person without violating the rule so long as the communication clearly explains the lawyer’s role as an advocate for the secured creditor. However, in light of the vagueness of Rule 4.3’s prohibition on giving legal advice, lawyers’ dealing with unrepresented persons can best avoid a violation of the Rule 4.3 by limiting legal arguments to formal pleadings.


1. See Bob Lawless, “One of Every Nine Bankruptcy Cases Is Filed Without a Lawyer,” www.creditslips.org (Sept. 8, 2010).

2. ABA/BNA Lawyer’s Manual on Professional Conduct § 71:501 (1999).

3. See, e.g., Louisiana State Bar Ass’n v. Harrington, 585 So.2d 514 (La. 1990) (finding violation of Rule 4.3 by lawyer who did not carefully explain his capacity).

3.ABA/BNA Lawyer’s Manual on Professional Conduct Comments on Rule 4.3.



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