Please explain the anticontact rule and the rule on dealing with unrepresented persons.

Question

What will be an ideal response?

Answer 1

The anticontact rule is found in ABA Model Rule 4.2 and ABA Model Code DR 7-
104(A)(1), but the differences between the two are telling. Essentially, the anticontact rule
prohibits lawyers—and by extension, paralegals/legal assistants—involved in a case from
making direct contact with a person who is represented by another lawyer for the same case.
The rule is designed to protect the lawyer-client relationship by preventing one lawyer from
taking advantage of someone outside the presence of that person’s lawyer. The distinction
between the Model Rules’ and Model Code’s anticontact rules is significant. The Model
Rules’ version is stricter because it prohibits direct contact with represented “persons,”
whereas the Model Code’s version only prohibits direct contact with represented “parties.” A
paralegal/legal assistant needs to know his or her own jurisdiction’s anticontact rule because
some jurisdictions that use the Model Rules have an anticontact rule that still retains the
Model Code’s “party” language. There are some exceptions to the anticontact rule, including
the following: parties or persons can have direct contact with each other, lawyers can make
contact with represented persons for reasons other than the underlying case, and courts can
authorize direct contact. ABA Model Rule 4.3 and, to some degree, ABA Model Code DR 7-
104(A)(2) concern how lawyers and the rest of the legal team are supposed to deal with
unrepresented persons. When dealing with unrepresented persons, a lawyer—and by
extension, a paralegal/legal assistant—must state that he or she is not disinterested in the
matter and may not imply neutrality. This would be accomplished by the lawyer stating that
he or she is a lawyer representing a client. The purpose of this rule is to prevent members of
the legal team from taking advantage of people who, worse than not having their lawyer
present to protect their interests, have no lawyer at all. Paralegals/legal assistants who engage
in discovery tasks and have contact with unrepresented witnesses need to keep two important
thoughts in mind: Do not give legal advice, and do not tell prospective witnesses what to say.