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THE ASSOCIATION OF THE BAR OF THE CITY OF NEW YORK
FORMAL OPINION 2002-3
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 N.Y. City 1991-2 is withdrawn.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.
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").
The "No-Contact" Rule and DR 7-104
During the course of the representation of a client a lawyer shall not:
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)).
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.
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 client.
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.")
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. . . "
ConclusionN.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