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.
- Is Lawyer correct in the interpretation of the rule and its comment?
- 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?
Ethics Alarms 
I think this is perhaps the key.
It is one thinks for spouses communicating in good faith to negotiate directly, but in a divorce, good faith cannot be assumed. A pro-se lawyer has an advantage in understanding the law, so could be in a position to manipulate his or her soon-to-be exspouse into unfavorable terms.
It is also entirely ridiculous to expect two spouses still living in the same house not to discuss the pending dissolution and related matters.
There is also the general principal of a pro-se lawyer having a fool for a client.
If the non-attorney spouse has counsel, that counsel should be informed of the living arrangements, and advise the client on the risks of negotiating directly with the attorney spouse. The client should be advised not to sign or formally agree without review by counsel. The attorney spouse should also be put on notice by ethics advisories to not abuse his advantage, and remind the non-attorney spouse to have counsel review.
Failure to do so should be professionally sanctionable, however, this shouldn’t absolve the non-attorney spouse from observing due diligence.
Texas “seems” more correct to me; but, couldn’t the divorcing lawyer simply retain a divorce attorney to avoid these kind of ethical issues? The two attorney’s could work out between them what each other are going to do.
I think Texas is right.
“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.”
I am not sure where the burden falls. The lawyer for the represented party should be pro-active in bringing up this issue. I have cases where a party complains that another party has contacted them directly. I have to go through and explain communication dynamics about who can communicate with whom.
I also have an attorney client who was uncomfortable contacting the other side directly (which is why she hired me, even though she did not have to); and it was not her area of the law.
Add to that, the Missouri rule has the unavoidable effect of driving up fees for the non-attorney litigant.
-Jut