New Model Rule of Professional Conduct – Rule 4.3 Dealing with Unrepresented Person

Some things to consider before you start chasing emergency vehicles.

 

Late last year, the Georgia Supreme Court revised some of the Model Rules of Professional Conduct which govern lawyers in Georgia. You probably read about the changes, and I highlighted one specific modification to Rule 1.15(I) several weeks ago.

 

Model Rule 4.3 – Dealing With Unrepresented Person is another one of the Rules that received a helpful facelift.  Unfortunately, the changes could cause some confusion if not considered in conjunction with another very important Rule.

Changes to Georgia’s Model Rule 4.3

The old Rule required that we wait 30 days from the date of an incident involving injury or death to approach a person not represented by counsel. The Court struck that section of the Rule, but added helpful guidance to section (b) and additional language to Comments [1] and [2].

Before you change your marketing plan, remember that Rule 4.3 applies only to approaching an unrepresented person as it relates to work done on behalf of a current client.

For example, let’s say that you represent a person who was involved in a car accident. As part of your investigation, you want to contact other parties to see if they have insurance. With the new Rule you don’t have to wait 30 days if you follow certain guidelines.

You do need to identify yourself and your client and, “where necessary, explain that the client has interests opposed to those of the unrepresented person” in order to avoid confusion and misunderstanding. Based on the Supreme Court’s comments, your only advice to an adverse party is for that unrepresented adverse party to retain counsel.

Client Prospecting Rules Have Not Changed

 

For those who thought they could start approaching prospective clients within 30 days of an accident, you are out of luck. Prospecting Rules are defined separately under Model Rule 7.3(a)(3) – Direct Contact With Prospective Clients. This Rule still requires lawyers to wait 30 days.

Adapting to the New Rule 4.3

When approaching an unrepresented person as it relates to work done on behalf of a current client, you’ll want to make sure:

• The unrepresented person knows who you are and who you represent.
• You explain that your client’s interests may be in opposition to the unrepresented person’s interests.
• You don’t give the unrepresented person advice other than to retain counsel.

Finally, put it in writing. If resolving or negotiating a matter on behalf of your client with an unrepresented person, have the unrepresented person sign a Settlement Agreement or Disclosure Statement clearly stating within that the unrepresented person has been given ample opportunity and time to retain counsel and has chosen not to do so.  Written notice is not required, but it is a better practice and may also provide protection should the unrepresented person later file a Bar complaint or grievance against you.

 

Click here to see the new Rule 4.3.