By Martin I. Kaminsky (Greenberg Traurig) and Maren J. Messing (Patterson Belknap Webb & Tyler)
Lawyers sometimes want to contact a person who is connected with an adverse party or formerly connected with an adverse party in a transaction or litigation. It may surprise you to learn that, while you generally cannot do that, you sometimes can. To avoid problems and complaints you need to understand the rules and the limits and spirit of the rules.
This article, which will be published in two parts, provides practical guidance on applicable rules and ethics opinions considering common situations that attorneys encounter. For the most part, it addresses only New York law; but reference in some instances will be made to differing ABA or state ethical rules and the law of other jurisdictions. Part I of the article explains the general “no contact” rule and the consequences of failure to adhere to it. Part II, to follow in another edition of NYLER, will explain the applicability vel non of the Rule to entities and their current or former employees and the nature of the discussions that may or may not be had.
What Are the Guiding Rules?
The starting point is Rule 4.2(a) of the New York Rules of Professional Conduct (NYRPC). It provides that “a lawyer shall not communicate about the subject of a representation with a party” who the lawyer “knows to be represented by another lawyer in the matter” unless the lawyer has the consent of the other lawyer or the contact is “authorized to do so by law.” NYRPC Rule 4.2(a). The Rule is substantially similar to prior N.Y. Disciplinary Rule 7-104(A) NYSBA Comm. Prof. Eth., Op. 904 (2014).
The Rule applies to communications made in connection with both transactional and litigation matters. Indeed, the Rule may apply even before the matter occurs if the communication is made as to a potential matter and the lawyer knows that that the person he/she is seeking to speak to is represented in that matter by counsel. NYSBA Comm. Prof. Eth., Op. 735 (2001). See, e.g., McHugh v. Fitzgerald, 280 A.D.2d 771, 772 (NY App. Div. 3d Dept. 2001) (“commencement of the litigation is not the criteria for determining whether communication with an adverse party is in derogation of the cited rule”); United States v. Jamail, 707 F.2d 638, 646 (2d Cir. 1983) (the prohibition applies to criminal investigations prior the actual commencement of a proceeding). But, as discussed further below, bar opinions and case law sometimes differentiate between civil and criminal cases and give greater latitude to investigations of possible criminal conduct. NYSBA Comm. Prof. Eth., Op. 884 (2011). See e.g., Gidatex v. Campaniella Imports Ltd., 82 F. Supp. 2d 119, 123 (S.D.N.Y. 1999).
The Rule also applies to all parties in a matter, not only those who are adverse to your client. NYRPC Rule 4.2(a). In other words, when you know another party has counsel in the matter, absent consent or legal right, you cannot communicate with that other party, regardless of the type of matter involved or the role of that party in the matter. Id.
The Rule does not prohibit communications about matters other than “the subject matter” of the transaction or litigation at issue. Id. But, a lawyer is well-advised to avoid such communications, particularly a conversation, lest it later raise questions in the mind of a jury or judge as to what was really said. Further, as a practical matter, there would appear to be little need or reason for such a communication on other matters at that time.
Does It Matter That Rule Speaks of ‘Parties’ Rather Than ‘Persons’?
Significantly, the New York rule speaks in terms of a “party.” In contrast, the ABA Model Rule, and that of several other states (e.g., New Jersey, Texas, District of Columbia, and others), provides that such communications may not be had with any “person” who is represented by counsel in the matter. Thus, on its face, the New York Rule sets forth a narrower prohibition than that of others. Id. As will be explained in Part II of this article, particularly when dealing with an organization or a witness, the New York Rule affords greater latitude than many other jurisdictions. See infra Part II. Differently, the other subpart of New York Rule 4.2 (also to be discussed in Part II) speaks in terms of “persons” not merely “parties.” Id. In this regard, Professor Roy Simon explains that the choice of the word “party” was a purposeful and deliberate change in 2009 from the text originally suggested by those recommending that New York adopt the ABA Model Rules to replace the former Disciplinary Rules and Ethical Considerations. Simon’s Rules of Professional Conduct, 1187 (2014). Prosecutors had expressed concern that a broad no-contact rule covering non-parties would or could impair their ability to prepare criminal cases. NYSBA Comm. Prof. Eth., Op. 884 (2011).
This distinction can be important. For example, ABA Formal Opinion 07-445 (2007) concluded that, in a civil context, putative class members are not “parties” for purposes of the no-contact rule, and do not become parties until a class including them has been certified. But one must be careful relying on this interpretation; some courts have determined the opposite. See e.g., Dondore v. NGK Metals Corp., 152 F. Supp. 2d 662, 665 (E.D. Pa. 2001); see also, Gulf Oil Co. v. Bernard, 452 U.S. 89, 104 (1981).
Apart from situations where special policy reasons may apply, New York courts and others have not always applied the distinction literally, particularly in non-criminal matters. For example, in NYSBA Opinion 607 (1990), the Committee gave the word “party” an “expansive definition” to apply to a potential party in a potential matter. Similarly, in NYSBA Opinion 735 (2001), the Committee concluded that the Rule could apply to an accountant represented by counsel even though not itself a party. Relying on the spirit of the Rule, the Opinion concluded that, regardless of its wording, the Rule applies to “represented witnesses, potential witnesses and others with an interest or right at stake, although they are not nominal parties” in the matter. Id.
As explained in NYSBA Opinion 884 (2011), which traces the history of the language, Rule 4.2 is given a more restrictive interpretation in criminal matters than civil matters. The Committee concluded that counsel for a defendant in a robbery case could contact a non-party witness even though he knew the witness had an attorney, distinguishing the issue there from contacting a witness in civil cases. Id. In addition, the Committee reasoned that such a witness can always insist on including his/her counsel in the communication, even if the witness is contacted directly. Id. Further, the Committee explained, counsel for the witness can advise his/her client not to speak to the inquiring lawyer without concern that to do so would violate the prohibitions in New York Rules 3.4(a)(1) and (2) and 8.4(b) and (d) against suppressing evidence and assisting wrongdoing. Id.
Does It Matter If You Don’t Make Contact Yourself?
Rule 4.2 is clear that it covers not only communications directly between a lawyer and another represented party, but also prohibits a lawyer from “caus[ing] another to communicate” in his/her place. NYRPC Rule 4.2(a). That part of the rule is meant to prevent the use of third persons, including investigators, to ferret out information from represented parties on a lawyer’s behalf; and it is given a broad interpretation. Id. For example, in United States v. Hammad, 858 F.2d 834, 836 (2d Cir. 1988), cert. denied, 498 U.S. 871 (1989), the Rule was found applicable to a supplier of the target of a Medicaid fraud investigation whom the prosecutor used to obtain an admission of wrongdoing from the target. The court concluded that the supplier was the “alter ego” of the prosecutor in that instance. Id.
Similar “alter ego” analysis would lead to the same conclusion as to other persons in a lawyer’s firm, whether attorneys or other employees such as paralegals or staff persons. See, NYC Bar Assn. Comm. Prof. Jud. Eth., Formal Op. 1995-11 (1995) (lawyers are responsible for the acts of non-lawyers under their supervision). See also, former N.Y. DR 1-104(A); In re Bonanno, 617 NYS2d 584, 584 (3d Dept. 1994) (censure of attorney for insufficient supervision of legal assistant). This analysis is consistent with the prohibition in New York Rule 8.4(a) that “[a] lawyer or law firm shall not violate” any of the Rules or “do so through the acts of another.” NYRPC Rule 4.2(a). New York Rule 5.3 also imposes a duty on lawyers to supervise those working for them, including non-lawyers. Thus, in simplest terms, lawyers are advised to honor the spirt of the Rule, and not look for loopholes or try to “lawyer” around it.
There are, however, some exceptions to the Rule. These exceptions are discussed below and will be further amplified in Part II.
What If the Person’s Lawyer Doesn’t Respond?
The Rule creates an exception if a party’s counsel consents to a lawyer directly contacting the party. On the other hand, what does a lawyer do if counsel for a party simply ignores her request or otherwise fails to respond to it?
Early ethics opinions tied the lawyer’s hands in this situation, concluding that contact is not possible in that instance unless there has been an affirmative indication of a termination of the attorney-client relationship between the silent lawyer and the person you want to contact. See e.g., N.Y. Cty. Law. Assn., Op. 625 (1974); NYC Bar Assn. Comm. Prof. Jud. Eth., Informal Op. 827 (1965). More recently, NYSBA Opinion 663 (1994) took a more practical view, concluding that “[a]fter sending a series of letters [to counsel for the person], including … one that warns of a consequence of a failure to respond, … the lawyer justifiably can conclude that she does not ‘know’ that the [person to be contacted] is represented by counsel.” In that instance, the lawyer may therefore proceed to contact that person directly. Nevertheless, the opinion cautions that, when contact is made, the lawyer must advise the person that, if indeed he/she is represented by counsel, he/she should refer the communication to that counsel. Id.
What If the Other Party Initiates Contact with You?
The Rule applies regardless of how the possible communication arises. It does not matter if the other party initiates it, requests it, consents to it or tells the lawyer he/she does not feel the need to have his lawyer included. As Comment 3 to the New York Rule provides, “[a] lawyer must immediately terminate communication with a party if after commencing communication, the lawyer learns that the party is one with whom communication is not permitted by the Rule.”
More complex is when someone whom the lawyer does not know to be a party or who was formerly connected to a party contacts the lawyer unsolicited with an offer of information about the matter in which the lawyer is involved. NYSBA Opinion 700 (1997) cautions the lawyer to proceed carefully and conservatively in that situation, lest they unintentionally get information (such as privileged information or work product) to which they are not entitled. There, an attorney prosecuting an administrative proceeding received an unsolicited telephone call from a person who said he was former non-lawyer employee of the law firm representing the respondent and had important information that thought the lawyer should know. Id. The lawyer sought guidance regarding how he should proceed. Id. The Committee advised that, although the contact was unsolicited, the lawyer still had the duties articulated in the predecessor of Rule 4.2 and related rules, particularly not to seek or obtain confidential information where disclosure might breach obligations to the other side. Id. Therefore, the Committee agreed that it was appropriate and advisable to seek guidance from “the tribunal [in which the matter is pending] or other appropriate authority” (such as another court) before accepting and reviewing the proffered information; so that the informer’s status and the nature of the information could first be effectively and properly determined. Id.
As Opinion 700 indicates and as will be discussed further in Part II of this article, the desire to protect against unwarranted disclosure and use of privileged and confidential information is at the heart of Rule 4.2. Id. That is consistent with the rules and the majority of case law that generally require a lawyer who has received privileged or confidential information that he/she should not have been sent to advise the other party involved and not use the information without consent. See e.g., NYRPC Rule 4.2(b); Fed. R. Civ. P. 26(b)(5)(B).
But, some other opinions do not necessarily apply Rule 4.4 when the information is unsolicited and the disclosure does not appear to be the result of inadvertence. For example, ABA Formal Opinion 06-440 (2006) cautions that Rule 4.4(b) applies only to documents inadvertently sent to a lawyer. Thus, Opinion 06-440 concludes that a lawyer who has received materials or information which were “not the result of the sender’s inadvertence” is “not required to notify another party or that party’s lawyer.” Id. Rather, that Opinion concludes, consistent with NYSBA Opinion 700, what action the lawyer should take is “a matter of law beyond the scope” of ethics rules (indeed one of “substantive law, at least in the first instance”) for a court. NYSBA Comm. Prof. Eth., Op. 700 (1997).
When Is Contact ‘Authorized … by the Law’?
The phrase “unless authorized … by the law” in Rule 4.2 does not conceal a secret key or otherwise hidden exception. NYRPC Rule 4.2. Rather, it is intended to clear the way for contacts such as lawful service of process, taking of a deposition or requesting documents, and other communications sanctioned or ordered by the court. Id. It also allows, in criminal matters, undercover operations and other such investigations. Id.
Even with such matters, lawyers should use care to avoid an improper conversation if the person involved is known to be represented by counsel. For example, in NYSBA Opinion 894 (2011), the Committee cautioned that, while Rule 4.2(a) is not intended to prevent service of an eviction notice by a landlord, the person doing so (and particularly one who is not a professional process server) should not use the occasion to engage in conversation that would otherwise be barred by the Rule. That means not discussing anything of substance related to the legal matter involved beyond confirming that the person being served is the one intended to be served. Id.
An interesting recent opinion of the New York County Lawyers Association, Opinion 745 (2013), discussed further in Part II, noted that lawyers are increasingly using the “unless authorized by law” exception to seek court-ordered access to password protected social media of parties and others whom they wish to contact. See infra Part II.
Does Lawyer Have Duty to Inquire Whether Person Has Counsel?
Rule 4.2 prohibits contact when a lawyer “knows” that a person is represented by counsel. NYRPC Rule 4.2. It does not say “has reason to know;” and Rule 1.0(k) defines knowledge as “actual knowledge of the fact in question.” NYRPC Rule 1.0(k). But, Rule 1.0(k) adds that “knowledge may be inferred from the circumstances.” Id.; see also, NYRPC Rule 4.2 cmt. 8. Thus, as a general proposition, a lawyer does not have a duty to inquire as to whether a person to be contacted is represented by counsel; but the lawyer cannot “turn a blind eye” to that question. As explained in NYSBA Opinion 728 (2000), “in some circumstances, a lawyer must confirm that an individual is not represented by counsel in the particular matter before communicating directly with the individual.” For example, if the person was known to have been represented previously, and it’s reasonable to think that may still be the case, inquiry should be made. Id.
Other situations might exist where a lawyer knows that the person had counsel on a similar or even unrelated matter or is someone who generally deals with legal matters through or with counsel. There, a lawyer has reason to believe the person may have counsel in the current instance. See, e.g., NYSBA Comm. Prof. Eth., Op. 904 (2012) (possible civil action against person who was represented by counsel in criminal fraud investigation concerning the same situation.) More troublesome is what the lawyer must or can do if it becomes apparent during the conversation that the person is represented by counsel or may want to be. If that occurs, the lawyer should ask if the person wishes to continue to speak with her or would prefer to do that through her counsel.
Communicating with unrepresented persons poses a further set of issues. This is addressed in New York Rule 4.3 and the Comments to that Rule. Essentially, they require that the lawyer properly identify himself, and take care to ensure that the person does not incorrectly believe he is disinterested, or otherwise misunderstands or miscomprehends his role, and what he is asking. Id.; see also, N.Y. Cty. Law. Assn., Op. 708 (1995). The Rule also prohibits the lawyer from giving legal advice to an unrepresented person, although that too is subject to exceptions. [NYRPC Rule 4.3.] For example, the lawyer may have the responsibility in some instances, to advise the person to consider getting legal counsel. See, NYC Bar Assn. Comm. Prof. Jud. Eth., Op. 2009-2 (2009) for guidance in that regard. “[T]he general rationale” of the no-contact rules is that “[t]the legal system in its broadest sense functions best when persons in need of legal assistance or advice are represented by their own counsel.” NYSBA Comm. Prof. Eth., Op. 728 (2000), quoting Ethical Consideration 7-18).
Therefore, a lawyer is well-advised to keep in mind not only the letter of the Rule but also its purpose and spirit whenever considering whether he can or should communicate with someone who is not represented by counsel. For example, in In re Winiarsky, 104 A.D.3d 1, 9-10 (N.Y. 1st Dept. 2012), the court censured counsel for obtaining affidavits from potential witnesses who contacted him and asked if they could give testimony without having to appear in court. The court there was troubled that the witnesses may not have understood that they didn’t have to give testimony at all or that they could answer only some questions and not others Id. at 4. To better understand these rules and limitations, see, “Simon’s Overview of Rule 4.3” in Simon’s Rules of Professional Conduct, 1230 (2014).
What Are the Consequences If a Lawyer Violates the Rule?
Failure to adhere to the no-contact rule can have serious consequences for counsel, as well as for her client. Disciplinary authorities have full power to act in response as they deem warranted by the nature and extent of the violation of Rules of Professional Conduct. See, e.g., In re Matthew B. Murray, 2013 WL 5630414, No. 11-070-088405, at *1 (2013); Winiarsky, 104 A.D.3d at 9-10. In addition, courts may impose their own sanctions. See, NYSBA Comm. Prof. Eth., Op. 700 (1997); Maldonado v. New Jersey, 225 F.R.D. 120, 133 (D. N.J. 2004). Counsel and his/her law firm may also be disqualified from continuing in the matter. See, e.g., Acacia Patent Acquisition, LLC v. Superior Ct., 2015 WL 851517, No. G050226, at *1 (Cal. Ct. App. 2/27/2015). Or short of that, the court may suppress evidence that might otherwise be admitted if properly obtained, or otherwise limit and restrict what may be said about it. See, e.g., Fayemi v. Hambrecht & Quist Inc., 174 F.R.D. 319, 323-25 (S.D.N.Y. 1997); U.S. v. Hammad, 858 F.2d 834, 840 (2d Cir. 1988).
Also, as explained above, counsel may unwittingly have created her own attorney-client relationship with the person involved, with all the attendant duties and responsibilities that entails. Even without that, counsel may have assumed unwanted duties of non-disclosure.
Recognizing these consequences, an attorney should understand what the Rule expressly prohibits, as well as the purpose of the Rule. Depending on the circumstances, the reach of the rule may be unclear.
As noted, Part II of this article will address other aspects and application of the no-contact rule and some situations that lawyers often encounter. That discussion will attempt to provide further practical guidance on how lawyers can avoid running afoul of the Rule.
Martin I. Kaminsky is General Counsel of Greenberg Traurig LLP. Prior to taking that position, he was trial and appellate counsel in cases involving securities, commodities, antitrust, corporate, contract, discrimination, legal malpractice and other business litigation issues.
Maren J, Messing is an associate at Patterson, Belknap Webb & Tyler LLP, involved in a variety of cases. Prior to joining that firm, she clerked in the federal district and appeals courts in New York.
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