TOPIC: The "no-contact rule" and advising a client in
connection with communications conceived or initiated by the client with
a represented party.
DIGEST: This Committee concludes that where the client conceives
the idea to communicate with a represented party, DR 7-104 does not preclude
the lawyer from advising the client concerning the substance of the communication.
The lawyer may freely advise the client so long as the lawyer does not
assist the client inappropriately to seek confidential information or
invite the nonclient to take action without the advice of counsel or otherwise
to overreach the nonclient. N.Y. City 1991-2 is withdrawn.
CODE PROVISIONS: DR 7-104 [22 NYCRR § 1200.35], EC 7-18
QUESTION: Where a client conceives the idea of communicating directly
with an adverse party who is known to be represented by counsel, may the
attorney advise the client about the substance of the communication?
Circumstances abound in both litigation and transactional contexts in
which it is advisable -- and even crucial -- for a client to communicate
directly with her counterpart. The need for such direct contact often
arises to cement a settlement or break a negotiating logjam, to name just
two common situations. To that end, the client might well expect to rely
especially heavily on her lawyer's advice as she contemplates entering
the fray personally. But in N.Y. City 1991-2, this Committee interpreted
DR 7-104 in a manner that deprives the client of her lawyer's advice when
the client may require that assistance most urgently.
Specifically, this Committee opined in N.Y. City 1991-2 that: (1) a lawyer
may not encourage or "cause" a client to communicate with a
represented party, without the consent of opposing counsel or legal authorization;
and (2) even in situations when the client independently decides to contact
a represented party, the lawyer should advise the client that, without
opposing counsel's consent, the lawyer cannot assist or advise the client
in these communications.
In July 1999, DR 7-104 was amended to provide a safe harbor for a lawyer
who suggests that a client communicate with a represented party:
Notwithstanding the prohibitions of DR7-104[1200.35](A), and unless
prohibited by law, a lawyer may cause a client to communicate with a
represented party, if that party is legally competent, and counsel the
client with respect to those communications, provided the lawyer gives
reasonable advance notice to the represented party's counsel that such
communications will be taking place.
DR 7-104(B). EC 7-18 further provides that a lawyer may advise his or
her client to communicate directly with a represented person, "including
by drafting papers for the client to present to the represented person,"
so long as the attorney gives "reasonable advance notice" that
such communications will be taking place. EC 7-18 defines "reasonable
advance notice" as "notice provided sufficiently in advance
of the direct client-to-client communications, and of sufficient content,
so that the represented person's lawyer has an opportunity to advise his
or her own client with respect to the client-to-client communications
before they take place." See Roy Simon, The 1999 Amendments
to the Ethical Considerations in New York's Code of Professional Responsibility,
29 Hofstra L. Rev. 265, 274 (Fall 2000) (describing "reasonable advance
notice" as a "flexible concept" that requires at least
ample time for the "opposing lawyer to get in touch with her client").
In light of these recent amendments to DR 7-104(b) and EC 7-18, we now
revisit the remainder of N.Y. City 1991-2
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The "No-Contact" Rule and DR 7-104
During the course of the representation of a client a lawyer shall not:
DR 7-104(A)(1) of the Code establishes a "no-contact" rule
The "no-contact" rule is traceable to an 1836 legal treatise that
instructs: "I will never enter into any conversation with my opponent's
client, relative to his claim or defense, except with the consent, and in
the presence of his counsel." John Leubsdorf, Communicating with
Another Lawyer's Client: The Lawyer's Veto and the Client's Interests,
127 U. Pa. L. Rev. 683, 710 n. 6 (Jan. 1979) (quoting 2 D. Hoffman, A
Course of Legal Study Addressed to Students and the Profession Generally
771 (2d ed. Baltimore 1836) (1st ed. Baltimore 1817)).
Communicate or cause another to communicate on the subject of the
representation with a party the lawyer knows to be represented by a
lawyer in that matter unless the lawyer has the prior consent of the
lawyer representing such other party or is authorized by law to do so.
It gained widespread acceptance in 1908 through the American Bar Association's
Canons of Professional Ethics, which prohibited a lawyer from communicating
with a represented party:
(quoted in ABA Formal Opinion 95-396, Communications with Represented
Persons (July 28, 1995)). The no-contact rule was carried forward into
the 1970 Code of Professional Responsibility.
A lawyer should not in any way communicate upon the subject of controversy
with a party represented by counsel; much less should he undertake to
negotiate or compromise the matter with him, but should deal only with
Among the purposes underlying the "no-contact" rule are the protection
of clients against overreaching by opposing counsel and the preservation
of the attorney-client relationship. "[T]he anti-contact rules provide
protection of the represented person against overreaching by adverse counsel,
safeguard the client-lawyer relationship from interference by adverse counsel,
and reduce the likelihood that clients will disclose privileged or other
information that might harm their interests." ABA Formal Opinion 396
(1995); see also Niesig v. Team I, 76 N.Y.2d 363, 370, 559
N.Y.S.2d 493, 496 (1990) ("By preventing lawyers from deliberately
dodging adversary counsel to reach - and exploit - the client alone, DR
7-104(A)(1) safeguards against clients making improvident settlements, ill-advised
disclosures and unwarranted concessions."); Charles W. Wolfram, Modern
Legal Ethics, § 11.6.2, at 611 (1986) ("The prohibition is
founded upon the possibility of treachery that might result if lawyers were
free to exploit the presumably vulnerable position of a represented but
unadvised party"); EC 7-18 ("The legal system in its broadest
sense functions best when persons in need of legal advice or assistance
are represented by their own counsel.").
The linchpin of N.Y. City 1991-2 was the conclusion that the lawyer's client
is included within DR7-104's prohibition against a lawyer's causing "another"
to communicate with a represented party. From this premise, this Committee
concluded that a lawyer cannot "assist, direct or otherwise participate
in such communication" by her client with an adverse party who is represented
by counsel even when the client conceives the idea of communicating with
her adversary. Beyond this, the Committee held that "a lawyer who learns
that a client has initiated settlement negotiations with the adverse
party may not, thereafter, advise the client how to proceed with those negotiations"
See N.Y. City 1991-2 (emphasis added)
To be sure, a lawyer may not use an intermediary to achieve indirectly what
the Code prohibits the lawyer from achieving directly. See DR 1-102(A) ("A
lawyer or law firm shall not . . . [c]ircumvent a Disciplinary Rule through
actions of another."). And the Committee was certainly correct to be
concerned with a lawyer using her own client as an instrumentality to circumvent
opposing counsel. In reaching this conclusion, the Committee's opinion was
supported by all relevant Bar Association opinions at that time, as well
as the interpretations of both this Association and the New York State Bar
Association of DR 7-104. After all, DR 7-104 explicitly mandates this concern
by prohibiting a lawyer from "caus[ing] another to communicate"
with a represented party, and there is no exclusion from this prohibition
for the lawyer's client. But, by interpreting DR7-104 to create a blanket
prohibition against the lawyer providing any assistance to her client, even
when the client conceives or initiates the communication - a situation that
by no means involves a lawyer in "causing" another to communicate
- this Committee misconstrued DR 7-104 and thereby ignored the overarching
reason why the lawyer has been engaged -- to render legal advice to the
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Lawyers May Advise Clients Concerning the Substance of Communications
Conceived or Initiated by Clients with Represented Parties _____________
Not surprisingly, N.Y. City 1991-2 provoked a flood of scholarly criticism.
"[This] interpretation [of DR 7-104(A)(1)] stands the no-contact
rule on its head. The purpose of the rule is to protect lawyers' agency
relationships with their respective clients, and to prevent clients from
being overreached by opposing lawyers." 2 Geoffrey C. Hazard, Jr.
& W. William Hodes, The Law of Lawyering, § 38.2 (2002); Restatement
(Third) of the Law Governing Lawyers § 99C, comment (k) (2000)
the anti-contact rule does not prohibit a lawyer from advising
the lawyer's own client concerning the client's communication with a represented
nonclient . . . Prohibiting such advice would unduly restrict the client's
autonomy, the client's interest in obtaining important legal advice, and
the client's ability to communicate fully with the lawyer."); James
G. Sweeney, Attorneys' Arrogance: Warning Unheeded, N.Y.L.J., June
17, 1991, p.2, col. 3 ("To deny or deter the client from the opportunity
of entering into the gauging process of what value is to him in a particular
dispute by denying him an opportunity to sit at the bargaining table with
his adversary works against the very fundamental idea of the self and
of human autonomy.") See also John Leubsdorf, Communicating
With Another Lawyer's Client: The Lawyer's Veto and the Client's Interests,
127 U. Pa. L. Rev. 683, 697 (Jan. 1979) ("An extension of the [no-contact]
rule to communications between clients is hard to reconcile with its ostensible
purposes. Whatever dangers flow from the confrontation of professional
guile with lay innocence are absent when two nonlawyers communicate .
. . Perhaps we have again come across the desire to keep disputes safely
in the control of lawyers.")
We believe that the overly broad construction of DR 7-104 in N.Y. City
1991-2 is at odds with modern authority. Under the Model Rules of Professional
Conduct, which replaced the Model Code in the majority of states, a lawyer
is permitted to advise a client to speak directly to a represented party.
See Model Rule 4.2. Indeed, in 1983 the ABA House of Delegates considered
and rejected a proposed amendment by the New York State Bar Association
that would have restored the language "or cause another to communicate"
to Model Rule 4.2. Opponents of the amendment successfully "objected
to a possible interpretation of the amendment that would prevent lawyers
from advising principals to speak directly with their counterparts. The
Rule was not intended to prohibit such advice." Legislative History
of the Model Rules of Professional Conduct: Their Development in the ABA
House of Delegates 148-49 (1987); accord ABA Formal Opinion 362 (1992).
The thrust of N.Y. City 1991-2 also is directly contrary to the Ethics
2000 Commission's Commentary to Model Rule 4.2 that states: "Parties
to a matter may communicate directly with each other, and a lawyer is
not prohibited from advising a client concerning a communication that
the client is legally entitled to make." Ethics 2000 - February 2002
Report, Rule 4.2, Comment 2, available at www.abanet.org/cpr/e2k-202_111_85.doc.
In this same vein, Section 99 of the Restatement of the Law Governing
Lawyers explicitly permits a lawyer to assist or advise a client concerning
communications with a represented party. See Restatement (Third)
of the Law Governing Lawyers § 99(2) (2000) ("[the no-contact
rule] does not prohibit the lawyer from assisting the client in otherwise
proper communication by the lawyer's client with a represented nonclient.").
On its face, we find nothing in DR 7-104(a) that would permit, much less
compel, a severe limitation on a client's right to obtain legal advice
to assist the client in communicating with her counterpart to achieve
a lawful objective. On the contrary, there is a strong public policy in
favor of resolving disputes that is undermined by an overly expansive
interpretation of DR 7-104(a).
In reaching the conclusion that a lawyer was ethically prohibited under
DR 7-104 from "endorsing or encouraging" direct client-to-client
communications or advising a client about the substance of communications
with a represented party even where the client, not the lawyer, first
raised or proposed the contact, New York City 1991-2 adopted an overly
broad definition of the term "cause":
We conclude that "caus[ing] another to communicate with a party"
in this context includes not just using the client as an agent for or
in place of the lawyer for making the communication (i.e., where the
lawyer directs, supervises or plans the substance of the communication),
but also the act of suggesting or recommending to the client that he
or she engage in such communication, even though the lawyer has no further
involvement in or knowledge of the substance of the communication that
subsequently takes place, or the endorsement or encouragement of such
a course of action, even when it is first raised or proposed by the
From this broad definition, the Committee concluded "[a] lawyer
who learns that a client has initiated settlement negotiations with the
adverse party may not, thereafter, advise the client as to how to proceed
with those negotiations. . . "
Given the modern authority referred to above, we conclude that a narrower
definition of the term "cause" contained in DR7-104 is more
appropriate, one akin to the definition found in the dictionary, which
would apply where the lawyer prompts or initiates a client's direct contact
with an adversary. It does not extend to the endorsement or encouragement
of a communication "first raised by a client" and does not preclude
the lawyer from advising the client on the content of communications conceived
of or initiated by the client.
In light of the foregoing, we are constrained to withdraw N.Y. City 1991-2.
In doing so, the Committee is mindful of the possibility that some lawyers
may seek to overreach, even when the client conceives the idea to contact
a represented party. Accordingly, the Committee adopts the Restatement's
salutary view that in advising a client in connection with such communications,
the lawyer may not "assist the client inappropriately to seek confidential
information, to invite the nonclient to take action without the advice
of counsel, or otherwise to overreach the nonclient." Restatement
§ 99 Comment (k). In this connection, we interpret "overreach[ing]
the nonclient" to prohibit the lawyer from converting a communication
initiated or conceived by the client into a vehicle for the lawyer to
communicate directly with the nonclient, an aspect of N.Y.C. 1991-2 with
which we agree (prohibiting a lawyer who learns that a client has initiated
settlement discussions with adverse party from assisting the client in
"in any other manner that would constitute using the client as a
vehicle for communicating with the represented party, absent notice to
and consent from opposing counsel").
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N.Y. City 1991-2 is withdrawn. This Committee concludes that where the
client conceives the idea to communicate with a represented party, DR 7-104
does not preclude the lawyer from advising the client concerning the substance
of the communication. The lawyer may freely advise the client so long as
the lawyer does not assist the client inappropriately to seek confidential
information or invite the nonclient to take action without the advice of
counsel or otherwise to overreach the nonclient.
1. Because the safe harbor created by DR 7-104(B) protects a communication
by a lawyer's client with a represented party when the communication is
initiated by a lawyer, a fortiori, the safe harbor protects a communication
with a represented party conceived of by the lawyer's client. As we discuss
below, however, where the client initiates the communication, the advance
notice provision of DR 7-104 (B) need not be followed.
2. Webster's Ninth New Collegiate Dictionary defines the word "cause"
to mean "to bring about an event or result" or "to effect
by command, authority or force".
Issued: May, 2002
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