Bar Counsel Notes: Dealing with unrepresented persons

Attorney represents the plaintiff in a personal injury matter where the adversary defendant remains pro se. Attorney wishes to propose a settlement preferably to that defendant's own attorney, but wonders if it is appropriate to so suggest that to the defendant. How should Attorney handle such a communication?

Attorney should communicate in writing to the defendant the proposed settlement with a strong suggestion that before responding, she should first consult with her own independent legal counsel to analyze her best options. Such a communication is specifically allowed by M. R. Prof. Conduct 4.3 (Dealing with Unrepresented Persons). Within the script of that letter, Attorney should be sure to use language that complies with the requirements (and allowances) of Rule 4.3, including "not stating or implying that Attorney is disinterested."

*Disclaimer: The Informal Ethics Advisory Notes from Bar Counsel are intended as outreach by the office of Bar Counsel for the use and benefit of the Maine bar. These scenarios are drawn from actual telephone calls received by the attorneys in the office of Bar Counsel in the course of providing informal advice on the Code of Professional Responsibility, known as Bar Counsel's "Ethics Hotline." The particular advice in each case is limited with reference to the particular factual situation related by the inquiring attorney who must be inquiring about his or her own conduct or the conduct of a member of his or her firm. We do not provide any advice to one attorney about the conduct of another attorney unless they are members of the same law firm. In the telephone opinions, we usually explore and discuss additional factual variables. However, I have attempted to pare down these factual scenarios to make the email newsletter more readable and useful in a general sense. Obviously, that creates the risk that slight variations on the facts, to a learned reader, may give rise to a different analysis and conclusion.