If you're representing yourself in a lawsuit, it can be difficult to communicate with the opposing lawyer. In this article, learn some tips for self-represented litigants on effectively communicating with opposing counsel. It explains the rules that both parties must follow.
What does “opposing counsel” mean?
“Opposing counsel” refers to the attorney or lawyer representing the opposing party in a lawsuit.
I keep trying to communicate with opposing counsel and they will not respond to me. Is there a way I can get them to respond to me?
It is not uncommon for pro se litigants to have difficulty communicating with opposing counsel, and there could be different reasons for this. The following are ways to attempt communication with opposing counsel:
Remind opposing counsel that you are not a represented party. Make it clear that you represent yourself as a pro se litigant. If opposing counsel thinks an attorney represents you, it is unlikely that they will communicate with you. This is because typically, lawyers are not allowed to communicate directly with another lawyer's client except in limited circumstances.
Reiterate to opposing counsel that you understand they are not your attorney. Make it very clear that you know opposing counsel represents the opposing party and not you. Let them know you understand they cannot give you legal advice or help you with your side of the case.
Could there be other reasons why opposing counsel is not responding to me?
Yes. There may be other reasons why opposing counsel is not responding to you. For example, the opposing party might not be paying their lawyer as agreed, so opposing counsel will not complete work on their behalf. Communicating with an opposing party is billable, so that may be why opposing counsel is not communicating with you.
Are there rules that attorneys have to follow when communicating with pro se litigants?
Yes. The Texas Lawyer’s Creed is a mandate for professionalism that attorneys are expected to follow when conducting their day-to-day duties with judges, colleagues, and clients. This mandate asks attorneys to be mindful of their behavior in and out of the courtroom. While the Texas Lawyer’s Creed is not a law, attorneys are expected to adhere to these rules.
The "Lawyer to Lawyer" section of The Texas Lawyer’s Creed lists the professional duties lawyers owe one another when they are working on a case. Even though you are a pro se litigant and you are not a licensed attorney, you are still owed these duties. This is because under Texas Rule of Civil Procedure 7, “Any party to a suit may appear and prosecute or defend his rights therein, either in person or by an attorney of the court.” The Texas Rules of Civil Procedure are a set of rules that govern procedures in civil trials. You may cite Rule 7 when communicating with opposing counsel.
Am I required to follow the same rules as attorneys if I am not an attorney and I am representing myself?
Yes. The same rules apply to everyone, even if you are not a licensed attorney. Under Texas Rule of Civil Procedure 7, “Any party to a suit may appear and prosecute or defend his rights therein, either in person or by an attorney of the court.” This means any party to a suit has the right to prosecute or defend themselves in that suit, but all parties must adhere to the same rules of law whether that person is a licensed attorney or not. One of the primary objectives of fairness in litigation is that the procedural rules of law and the court apply to all parties, including pro se litigants.
What happens if I or opposing counsel do not follow these rules?
If the rules are not followed, attorneys and pro se litigants may face consequences such as fines, sanctions, or dismissal of the case by the judge overseeing their case. The Texas Disciplinary Rules of Professional Conduct govern the ethical and professional behavior of attorneys and pro se litigants involved in a case. These rules mandatorily regulate the minimum level of professional conduct that both parties must sustain to avoid being sanctioned or experiencing other disciplinary action. These rules ensure fairness and consistency in the treatment of all individuals involved.
Can opposing counsel give me legal advice regarding my case?
No. Under Rules 4.02 and 4.03 of the Texas Disciplinary Rules of Professional Conduct, attorneys cannot provide legal advice to a pro se opponent. This should not be taken as a sign of disinterest in your case but as an ethical obligation attorneys have to their own clients. Attorneys must avoid even the appearance of a conflict of interest.
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