It is not uncommon for an attorney to represent a client in a legal matter opposite an individual who is pro se. It has long been the case that, in this situation, the lawyer cannot state or imply that the lawyer is disinterested and the lawyer is also required to make reasonable efforts to correct any misunderstanding that the pro se may have about the lawyer’s role.
Now, with the recent additions to Texas Disciplinary Rule of Professional Conduct 4.03, the Rule makes clear that a lawyer is prohibited from giving any legal advice to the pro se if the lawyer knows or reasonably should know that the interests of the pro se are adverse to the lawyer’s client. The only thing that the lawyer can tell the pro se in this situation is to suggest that the pro se retain counsel. In short, don’t give advice to unrepresented persons.
That said, the lawyer can still negotiate the terms of a settlement with the unrepresented person, including even the preparation of documents requiring the pro se’s signature, as long as the lawyer has clearly explained the lawyer’s role to the pro se and that the lawyer is not representing the pro se. See, Cmt. 2 to Rule 4.03. Of course, it is highly recommended that this communication be confirmed in writing to the pro se.
What is also ok is communication to the pro se of “legal information” such as information about court rules, court terminology and court procedure, as well as giving direction to legal resources, forms, and referrals. Cmt. 3 to Rule 4.03. The lawyer can also review forms and other documents for completeness, and state why a document or form may be incomplete. If the lawyer does these things, however, she needs to proceed with caution and make sure she does not cross the line from giving “legal information” to giving “legal advice.”
A reminder that the amendments to Rule 4.03 are now in effect as of October 1, 2024, and TLIE has a one-hour ethics CLE available that discusses all of the new and amended Rules.