Need to Revise Georgia Rule of Professional Conduct 4. 3

Here’s another Georgia Rule of Professional Conduct that make need some revision.  Our Rule 4.3 differs from the ABA Model Rule 4.3 in ways that are well-intended but have unintended consequences.

ABA Model Rule 4.3 provides:

In dealing on behalf of a client with a person who is not represented by counsel, a lawyer shall not state or imply that the lawyer is disinterested. When the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer’s role in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding. The lawyer shall not give legal advice to an unrepresented person, other than the advice to secure counsel, if the lawyer knows or reasonably should know that the interests of such a person are or have a reasonable possibility of being in conflict with the interests of the client.

In 2002, the ABA added the last sentence (“The lawyer shall not give legal advice…”) to the rule. Before the 2002 amendments a similar prohibition had been part of the comment rather than the rule itself, and it had been absolute. In the amended version of the rule, advice-giving is prohibited only if the unrepresented person’s interests may conflict with the client’s interests.

Georgia Rule of Professional Conduct  4.3 adds a paragraph that, according to my cursory research, has not been adopted in any other states:

In dealing on behalf of a client with a person who is not represented by counsel, a lawyer shall not:
(a) state or imply that the lawyer is disinterested; when the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer’s role in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding;
(b) give advice other than the advice to secure counsel; and
(c) initiate any contact with a potentially adverse party in a matter concerning personal injury or wrongful death or otherwise related to an accident or disaster involving the person to whom the contact is addressed or a relative of that person, unless the accident or disaster occurred more than 30 days prior to the contact.
The maximum penalty for a violation of this Rule is disbarment.

Paragraph (c) was probably intended to protect injury victims from overreaching by lawyers on the defense side.  However, it does not protect injury victims from non-lawyer adjusters and investigators working for insurance companies and risk management offices of corporations, who are the people most likely to contact them for an adverse party. As a practical matter, it is only attorneys retained by (or for) injury victims and their families who are restrained by this rule. This rule prohibits the victims’ lawyers from contacting an adverse party within 30 days to request insurance coverage information, put the putative defendant on notice  to preserve evidence, or to take a statement.

Rule 4.3 should be amended to provide a level playing field.  Perhaps that can be done by making the 30-day waiting period more even-handed in light of the practical realities.  A simpler approach would be to just adopt the 2002 version of the Model Rule.

The Shigley Law Firm  represents plaintiffs in wrongful death and catastrophic injury cases statewide in Georgia, and in other states subject to the multijurisdictional practice and pro hac vice rules in each state. Ken Shigley was designated as a “SuperLawyer” in Atlanta Magazine and one of the “Legal Elite” in Georgia Trend Magazine. He is a Certified Civil Trial Advocate of the National Board of Trial Advocacy, Chair of the Southeastern Motor Carrier Liability Institute and former chair of the Georgia Insurance Law Institute. He particularly focuses on cases arising from truck wrecks and accidents (tractor trailers truck wrecks, semi truck wrecks,18 wheeler truck wrecks, big rig truck wrecks, log truck wrecks, dump truck wrecks.