Formal Opinion 2002-3: The “no-contact rule” and advising a client in connection with communications conceived or initiated by the client with a represented party

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 N.Y. City 1991-2 is withdrawn.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?

OPINION

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.”SeeRoy 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 ¹ .

DISCUSSION

The “No-Contact” Rule and DR 7-104

DR 7-104(A)(1) of the Code establishes a “no-contact” rule for counsel:

During the course of the representation of a client a lawyer shall not:

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.

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:

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 his counsel.

(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 aclient has initiatedsettlement 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.

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 client.

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”).

Conclusion

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