Logic, Common Sense and Legal Ethics: The Pro Se Divorcing Lawyer Problem

/ Jack Marshall / 3 Comments

I know these technical legal ethics issues don’t interest a lot of readers, but it is my field, and this one is an all-time oldie-but-goodies.

A lawyer is in the midst of a divorce. He represents himself (a “pro se” representation); his wife has a lawyer. In all jurisdictions, Rule 4.2 or its equivalent declares that a lawyer may not meet with an adverse party in a matter without that party’s attorney present unless that counsel has been alerted and consents. The self-representing lawyer meets with his wife, whose attorney hasn’t learned about the meeting.

Is the lawyer-husband violating the rule?

The Supreme Court of Texas held last week that Rule 4.2 (Texas 4.02) does not prohibit a pro se lawyer from communicating directly with opposing party in a divorce . Ruth v Commission on Lawyer Discipline, 2026 WL 1699920. But in Missouri, the recent opinion regarding the exact same issue was the opposite. Here is that whole opinion, Informal Opinion Number: 2026-02, April 21, 2026:

Question:  Lawyer is divorcing Spouse.  Lawyer is pro se in the dissolution.   Spouse is represented by counsel.  Lawyer and Spouse had reached an informal agreement about the division of property before filing the dissolution action.  Lawyer and Spouse continue to reside together while the dissolution is ongoing.   Spouse discussed with Lawyer repairs needed at the marital home and payment for the repairs.  Spouse initiated the conversation.  After Lawyer spoke with Spouse regarding the repairs, Spouse’s lawyer advised Lawyer that all communications concerning the dissolution should be made through Spouse’s lawyer.  As a party, Lawyer believes Lawyer has a right to communicate directly with spouse.  Lawyer bases this belief upon a reading of Rule 4 dash–4.2 and Comment [4] to the Rule.  Rule 4 dash–4.2 prohibits a lawyer who “is representing a client” from directly communicating about the subject of the representation with any other represented party.  Comment [4] to the Rule provides that parties may communicate directly with each other.

  1. Is Lawyer correct in the interpretation of the rule and its comment?  
  2. Is the interpretation the same, regardless of whether Lawyer is pro se or Lawyer has engaged counsel to represent Lawyer?

Answer 1:  No, Lawyer’s interpretation is incorrect.  Interpretation of the Rule and Comment [4] require consideration of both the Rule’s plain language and the policy purposes behind the Rule.  The Rule protects a represented person against overreaching by other lawyers, interference with the client-lawyer relationship, and the uncounseled disclosure of information relating to the representation.  See Comment [1] to Rule 4 dash–4.2.  Direct communications between a represented party and a pro se lawyer create the same risks that Rule 4 dash–4.2 was designed to prevent.  So, the pro se Lawyer is considered “self-representing” or, i.e., “representing a client,” and direct communication with the spouse regarding the dissolution is prohibited.  See Informal Opinion 2011 dash–03.  This is true even if Spouse initiated or consented to the communication.  See Comment [3] to Rule 4 dash–4.2.

Answer 2: The same risks exist with direct communications for the represented party regardless of whether Lawyer is pro se or has counsel. Consequently, Rule 4 dash–4.2 prohibits direct communication between the parties unless counsel for the parties consent to direct communications or the communication is authorized by law or court order.

The consensus among legal ethicists is that the Texas approach makes sense and the Missouri version does not. A spouse in the midst of a divorce should not be prohibited from talking things out with his partner if she consents just because he happens to have a law degree. The non-lawyer party can always say refuse the meeting. I would add, however, that best practice is for the pro se lawyer to advise his spouse to check with her attorney before agreeing to the meeting.

Are you with Texas or Missouri, or me?

The Kennedy Center and the Reflecting Pool: If You Really Think These Are Worth Protesting, You Suffer From….

/ Jack Marshall / 3 Comments

You know how to finish that headline.

I’m trying to think back on whether any President was so hectored, attacked and criticized over matters as tangential to Presidential performance in office as Donald Trump regarding these two “scandals.” I rank both of these on the level of Harry Truman criticizing the Washington Post music critic who criticized his daughter Margaret’s singing: fodder for future Presidential trivia and oddities, but ultimately non-substantive.

So why did former CNN full-time partisan anti-Trump agent Jim Acosta go into raptures over the removal of Trump’s name from the Kennedy Center’s front, “This is very much like watching the Berlin Wall coming down. It is a sign that mankind, humankind can stand up against tyranny“? Because, dear friends, these sad, confused, hysterical people have lost all sense of proportion and reason. As I have had to point out on EA too many times already for such a silly episode, the President’s take-over of the Kennedy Center was petty, vindictive, intentionally obnoxious (aka “trolling”) and gave his worst enemies a metaphorical stick to beat him with. But it was also an act that literally had no impact on matters concerning the American public, since it involved an elitist art venue unaffordable or inaccessible to all but about .0001% of Americans, and is an aging, excessive monument to the second most over-rated U.S. President in U.S. history (the first being Barack Obama).

One wag on X responded, “I missed the time when people were SHOT DEAD trying to get into the Kennedy Center for 40 years. What a clown.” That clown was permitted to be CNN’s official representative at White House press briefings for Trump’s entire first term! If that isn’t a smoking gun regarding the state of our mainstream media’s objectivity, I don’t know what is. The Trump Deranged are so crazed that they get ecstatic over the slightest foiling of any Trump project, policy or initiative, big or small, wise or foolish, right or wrong. These are lives whose values are governed by the cognitive dissonance scale, which is emotional, not rational. It has been suggested in jest that Trump louse up Democratic primaries by endorsing the Democrats he wants to see lose. It’s a great idea. Democrats and progressives are so batty that it would work.

And then there is the Reflecting Pool.

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Unethical Quote of the Week: Bob Greene, Board Chair for Rocky Mountain PBS

/ Jack Marshall / 9 Comments

“A nice stroke that turns him into a drooling, pooping blob in a wheelchair unable to speak.”

——Bob Greene, Chairman of the Board of Rocky Mountain PBS, on the station’s X account when asked about his birthday wish for President Trump, who turned 80 last week,

Nice! On the Rocky Mountain PBS website, Greene is described as “an experienced senior executive with over 35 years in sales, marketing and operations in the entertainment, interactive and broadband industries” who is “responsible for developing new revenue platforms and partnerships that leverage and enhance the global scale of Liberty.”

Nah, there’s no mainstream media bias! Responding to this pure verbal hate, a spokesperson for Rocky Mountain Public Media said that it had “only recently become aware of this post in question” and that it violates their social media guidelines, which state that “Personal views and political positions should be kept separate from the station’s content, and should not appear on any RMPM-operated platform or dedicated page/stream” and ” that “when using the internet or social media in your personal life, please make it clear and conspicuous that all of your statements are on your own behalf and are not RMPM’s. Disclaimers such as ‘opinions are my own’ should be used whenever appropriate.” And Greene’s post magically disappeared.

But the official disclaimer doesn’t change the fact that the individual at the top of the station’s management pyramid felt comfortable posting his vile opinion because it was completely consistent with the bias and toxic culture at the station. Hiding that kind of deranged hate doesn’t solve the problem of programming being filtered through such attitudes and such irresponsible leadership.

The episode serves as a vivid reminder of how much NPR and PBS deserved to have their Federal Funding eliminated. I had another discussion with a Trump Deranged friend who was bemoaning the loss of the two Leftist propaganda organs, which bring essential services to remote rural communities, or so the story goes. All NPR and PBS had to do was be fair, objective and non-partisan to have a strong argument that they performed an important function for the public regardless of citizens’ political affiliations. They couldn’t do it. They allowed themselves to be co-opted and dominated by progressives and Democrats who proved unable to restrain their objective of using NPR and PBS to advance a partisan agenda and to indoctrinate listeners. Greene openly expressed that bias, which he was supposed to keep under wraps like the rest of the staff. Yet the NPR and PBS broadcasts are evidence enough.

These people have such contempt for the intelligence of Americans,

Exit Question: Has any previous POTUS been the object of such unrestrained verbal calumny?

Alcoholic Lawyer Ethics: An Inconvenient Truth

/ Jack Marshall / 13 Comments

[That’s Paul Newman above, playing the alcoholic trial lawyer in “The Verdict.”]

I recently caused consternation (again) on the listserv of the Association of Professional Responsibility Lawyers (APRL), the organization that brings together most of the lawyers who concentrate on the contentious field of legal ethics as ethics partners, professors, state bar disciplinary counsel, CLE trainers, consultants, and just interested lawyers. I had been considering dropping this metaphorical bomb on the group for some time. My thesis: lawyers who are alcoholics, “recovering” or not, are ethically obligated to inform their clients of that ongoing and incurable malady. I see no way out of this ethical obligation, but the legal profession has been scrupulously avoiding confronting reality for centuries.

Alcoholism was once the secret meaning of “moral turpitude” in state bar associations’ requirements for admission: if you were guilty of moral turpitude, you couldn’t get a law license because of a presumed character deficit. When alcoholism was finally recognized as the illness it is, being an alcoholic was no longer a basis for bar exclusion or discipline. Bar associations all established “Lawyer Assistance Programs” as the alternative to punishment for lawyers with alcohol or substance abuse problems. That’s nice. However, none of the measures currently employed deal with the inconvenient facts of alcoholism.

Based on my knowledge and extensive experience with friends, family and associates, all alcoholics are untrustworthy by definition. They have a strong tendency to lie, for example (and they will admit that, if pressed) to conceal their addiction as well as the often disastrous results of it. No one, including the alcoholic himself or herself, can know when a relapse will occur or what will trigger it. A binge alcoholic can seem healthy and dependable for months or years, and suddenly go on a bender that incapacitates him. My late wife, a brilliant and capable woman who struggled courageously with the illness her whole life and ran our business and finances (or, should I say, said she was and made a good show of it) would have sudden unpredictable relapses that she covered up with consummate skill. She was what is called a maintenance-level alcoholic. She had a degree of intoxication she needed to maintain to function well and appear sober; below that level of alcohol consumption she suffered from withdrawal symptoms. One drink over that set-point, however, and she was physically and mentally incapacitated. Many maintenance level alcoholics successfully hide their addictions while actually being drunk every day in highly challenging jobs…until they can’t. Alcoholism is a progressive disease. Over time, alcoholics’ ability to control their addiction deteriorates along with their over-all health and mental state.

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Yet Another Great Stupid Outbreak, But It’s In Minnesota, So We Shouldn’t Be Surprised…

/ Jack Marshall / 8 Comments

I’m busy today, but fortunately I am being inundated by ethics stories that write themselves. Watch that video above. A Minneapolis dog park is being decommissioned because someone discovered it was on “sacred Native American land.” The rational response to that “problem” is “so what?” If it was sacred, the reasons are lost to antiquity. Not one living human being is harmed by supervised dogs running free in the area. Nonetheless, this uber-woke stste is besotted with victim-mongering and its culture embraces the batty “land acknowledgments” progressives are now addicted to. (One was read before the official dedication of Obama’s “The Empire Strikes Back” styled library.)

And please someone tell me: why are unleashed dogs more disrespectful to dead Indians than leashed dogs?

It continues to amaze me that so many once intelligent, reasonable people have been indoctrinated, bullied, and propagandized into such madness. But they have.

Now what?

Spuds is perplexed.

[Pointer: James Rogers]

The Great Stupid, DEI Mania Division:

/ Jack Marshall / 11 Comments

Let’s see:

  • Because the best soccer players happened not to be black?
  • Because the team was constructed according to ability, not DEI mandates?
  • Because sports are not supposed to be about race?
  • Because sane fans don’t demand that athletic teams “look like them”?
  • Hey, you’re right! Funny, I didn’t notice because I was watching the game. Are there any Asians?

A wag from Argentina responded on X, “Because we are a country, not a Disney movie.”

Yeah, that too.

Confronting My Biases #30: Fake Puffy Lips

/ Jack Marshall / 11 Comments

More than 10 years ago I wrote about Kristina Rei, 22, of St. Petersburg, Russia. She wanted to look like Jessica Rabbit, the cartoon character, so she got herself a pair of huge—lips.She has undergone over 100 silicon-injection procedures, and considers it just the initial step in her quest to look like Roger Rabbit’s Toon wife from “Who Framed Roger Rabbit?”. ” At the time, I asked whether it ethical for a plastic surgeon to give her the ridiculous lips she coveted, since plastic surgeons are subject to the Hippocratic Oath like other doctors. My own position then and now, was that it is unethical, though I tried to give both sides of the issue.

“If Kristin can eat, drink and breathe with her mega-lips,” I wrote, “and there is no risk that they might explode, killing everyone near her, the decision to do what she wants is probably ethical, at least by medical ethics standards. The fact that her Chap-Stick costs will be astronomical is not the doctor’s concern, however.” Nevertheless, I concluded that “a plastic surgeon who assists a patient, especially one so young, in disfiguring herself to this extent is unethical. Autonomy is to be respected always, and beauty is in the eye of the beholder.  Kristin’s lips are so far beyond reason that a plastic surgeon debases his profession by assisting in what can fairly be called self-mutilation.”

My bias regarding fake puffy lips does not involve such extreme disfigurement; indeed most would agree that young women getting their lips puffed up isn’t disfiguring at all. However, it is increasingly becoming apparent to me that this particular form of supposedly aesthetic enhancement is becoming a norm, and a harmful one.

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Not Surprisingly, “The Ethicist” Is Hoplophobic

/ Jack Marshall / 7 Comments

I have a like-hate relationship with Prof. Kwame Appiah, the current proprietor of the New York Times Magazine’s “The Ethicist” column. The most credentialed of the many individuals who have manned the column (one was female) has provided me with fodder for many EA posts, often critical ones, and I am properly grateful. However, his embedded New York Times Standard Progressive bias is a constant problem for him (and me, as an ethicist observing his conduct), and his latest column is a particularly annoying example.

A friend of a senior married couple [Aside: the Times illustrator draws them as an inter-racial pair, though there is nothing in the facts to suggest that. This is just one of the thousands of little ways our media tries to surreptitiously embed its priorities into the culture. I feel my arm being twisted. Don’t you?] writes,

“I have friends in their 70s who have taken in their adult son following his divorce. It is going on two years now, and he is making no progress at finding work or moving out. Granted he has mental-health issues, like panic disorder and depression, but he lives rent-free, has a dog he does not take care of and berates his parents on a regular basis. His parents won’t even ask him to help around the house because they are afraid of his volatility. He can become extremely angry, especially toward his father. He also owns a gun. This last bit scares the heck out of me. His father is going to retire in a couple of months, and they are planning to sell their home and move out of state. They have told their son that he is not coming with them, and the son is upset about this. His mother is trying to put together family counseling sessions but is having difficulty finding something they can afford. As the deadline of the move approaches, I truly worry the son will shoot himself or shoot his parents and then himself. I’ve known this family for 35 years. Do I call adult protective services? Do I alert the police that a mentally ill man owns a gun? I am truly concerned.“

Fine. Be concerned. Give them advice. However, there is literally nothing in the friend’s narrative—and she doesn’t live with the family—that suggests that the son is going to shoot himself or his parents except the single fact that he owns a gun, which he has every right to do. Hoplophobia is popularly known as gunphobia, and a lot of American have it, especially women and progressives as well as Democrats and members of the news media like “The Ethicist,” and, obviously, “Name Withheld,” who writes most of the questions that get published in Prof. Appiah’s column.

I find it incredible that The Ethicist’s advice in this case includes,

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The U.K.’s Rape Gangs and the Warning to America

/ Jack Marshall / 12 Comments

A Guest Post by

Sarah Beth

There have been two major incidents that brought my attention to this problem in the UK.  I think we have all heard about Henry Nowak, but the fact that he died while being arrested for racism rather than having someone take care of him and arrest the kid who knifed him rather upset me.  In case we are confused about the problem, at least in the US Karmelo Anthony was arrested rather than Metcalf, whom he had stabbed.  However, a new report has come out regarding the Muslim grooming gangs in the UK and that, with the background of Henry Nowak, leads me to some conclusions.  Read the whole thing, if you have the stomach for it.  I cried as I read it.

If it is too upsetting to read it all, here is an article about the report.  It doesn’t hurt as much to read. 

There are three main causes that I can see for this situation.  The first cause, like the cause for much human suffering and trafficking, is poor structure, in this case, family structure.  Most trafficked girls are either sold to traffickers or, as in many of the victim’s reports, from a less than ideal, often abusive, family structure.  I don’t plan to discuss the problems or solutions to this, as it is a serious can of worms and the hardest to fix. If we work on the other two problems, this, while still an issue, will be less of one.

The next problem is that of Islam.  Islam itself is not a good religion for a civilized society.  We see that the Koran states that you may marry up to four wives and have as many concubines as you wish, as long as they are not Islamic women.   Sex with prepubescent girls is also totally okay, with child marriage accepted and consummation recommended at the age of 9 with some versions of Islam suggesting it even earlier.  Some Imams have said that it is better for a girl to not to become a woman (referring to her first period) in her father’s house, but instead in her husband’s.  We also have the precepts in the Koran for how Muslims should behave in society, peaceful as the powerless, lying to unbelievers at any time, and when reaching a majority and having power, becoming brutal. 

Before discussing the repercussions on society for those precepts, I think it is fair to address the concern that this is not all of Islam, the “religion of peace.”  We can always have the discussion of what in a holy book is to be taken literally, figuratively, or even transiently.  I know of many statements in the Bible that we could debate.  However, there are plenty of reasons to believe that the Koran is far more troublesome than the Bible.  First, many Imams today proclaim the harsher rules, and the Imams who do not are almost always in non-majority Muslim countries, which could perhaps fall under the “lying to infidels” rule.  If we compare that to how Jewish rabbis, protestant ministers, and the Pope relate to the Bible, you will see that the violence recommended in the Bible is not taken to be a command to take literally today by the majority, even in countries where Jews or Christians are the majority. 

The second reason we should consider the Koran’s violence to still be considered a literal command instead of a figurative one is the sheer number of Muslims that follow it.  We can look at Jews and Christians and see that the majority of followers of those religions do not follow the violent commands.  Consider the commands in Leviticus and Deuteronomy to stone homosexuals and witches.  There aren’t many Christians who do either, and the majority loudly denounces people like Fred Phelps and the Westboro Baptists.  We don’t see much of the Muslim world decrying other Muslim’s antisocial behaviors.  The best we tend to get is, “that’s not how we follow our faith, so don’t blame us.”

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A Conversation With The Trump Deranged

/ Jack Marshall / 13 Comments

A Guest Post by Steve Witherspoon

When the Trump Deranged say “I’d be happy to argue facts,” don’t believe a word of it. I did recently, and found myself talking to a brick wall.

I recently had a discussion over on Nextdoor with a gentleman we shall call “Kurt.” I had shared my recent blog post that talked about what I saw as I drove around eleven states on a recent two week vacation. The post focused mainly on how I perceived the surrounding economy as I traveled through the states, cities, suburbs, and rural areas. The content of that “The Sky Isn’t Falling!” blog post isn’t the ethics matter at hand, but rather how Kurt reacted it.

I started the whole interaction with me writing “Come on folks, the sky isn’t falling” including a link to my blog post. This was on Friday morning, June 12th. I posted this because I wanted to see what kind of reaction I’d get from people on Nextdoor, especially the Trump Deranged, so you could say I went fishing and I snagged a big one. Nextdoor traffic is usually higher on the weekends. As is typically the case, I got some approving and disapproving comments. The comment that caught my attention was the one Kurt posted on Saturday morning.

Here’s the part of Kurt’s comment that caught my attention. [His comments are in quote boxes, and an my commentary to each part follows]

“Ignore economic reality and Trump’s assault on democracy and decency.”

What caught my attention within that sentence was the phrase “Trump’s assault on democracy.” This is an assertion of fact claim/accusation.  I replied, in part, to Kurt,”I’m no fan of Donald Trump; but, do you understand that parroting nonsensical anti-Trump partisan propaganda like “Trump’s assault on democracy” pigeonholes you with others suffering from acute TDS? That is a rhetorical question.”

“I’d be happy to argue facts…I believe he is a despicable, incompetent and immoral human being. You object to my characterization of him, while he routinely calls anyone he dislikes using terms like “vile scum,” etc.”“

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