Opinion No. 1995-11

(Inquiry No. )

Communication by a lawyer with a person who has an interest adverse to the lawyer’s client, and who is not represented by counsel.
A lawyer suing the relative of a homeowner on behalf of a construction company that was hired by the relative to perform certain work on the homeowner’s house, may communicate directly with the homeowner who is not a party to the lawsuit provided that certain conditions are observed.
Code Provisions:
Canons 7 and 9;
EC 7-1, EC 7-10, EC 7-18;
EC 9-2;
DR 7-104(A),
DR 1-102(4) (5)
Facts Presented:
Inquiring counsel represents a construction company in a lawsuit against a father who hired the company to do certain work on his daughter’s house. The daughter is not being sued, because, according to counsel’s statement, only the father is obligated to pay for the work. Inquiring counsel is eager to contact the daughter directly. However, counsel does not state the manner or purpose(s) of the proposed communication and no information, including the status of the lawsuit, the contentions of the parties or the extent of the construction work, if any, is given.
Inquiring counsel asks whether it is ethical to contact the daughter directly.
The daughter may be contacted directly by inquiring counsel subject to the conditions set forth in this Opinion.
DR 7-104(A) provides that “During the course of the representation of a client a lawyer shall not:

1. 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.

2. Give advice to a person who is not represented by a lawyer, other than the advice to secure counsel, if the interests of such person are or have a reasonable possibility of being in conflict with the interests of the lawyer’s client.

Counsel’s inquiry clearly shows a reasonable possibility that the daughter of the defendant has an interest in conflict with counsel’s client. Work performed on the daughter’s house, or materials supplied, could be the basis of a mechanic’s lien in plaintiff’s favor. In addition, while any agreement, understanding, or other relationship between the daughter and the named defendant with respect to the basis upon which the defendant undertook financial responsibility for the work performed is unknown, there is a reasonable likelihood that the daughter as the beneficiary of the work performed may have an interest in the outcome of the dispute.

Counsel’s inquiry does not state how or why direct contact with the daughter is sought except to state that counsel “is dying” to make such contact. None of the circumstances of the dispute or the status of the lawsuit are given. Counsel may merely be seeking peripheral information concerning the facts or circumstances of the matter, or be seeking to interview the daughter to determine whether a deposition would prove fruitful. On the other hand counsel might be indirectly seeking a communication with the defendant [sic] father, or might even be attempting to indirectly influence the father by either persuading or intimidating the daughter towards some end.

As determined by the New York State Bar Association Committee on Professional Ethics in N.Y. State Opinion #463 (1977)

Where a person is not represented by counsel . . . a lawyer is free to communicate with him on any and all subjects and may, indeed, offer unsolicited legal advice, provided the interests of such person are not potentially in conflict with those of the lawyer or his client. If such potential conflict exists, the only advice which the lawyer is permitted to offer that person is to secure other counsel. In this last connection, it is especially important to recognize the distinction between the giving of legal advice and the obtaining of information. Where the lawyer does no more than obtain information, even though that information may be harmful to his informant, if the informant is not represented by counsel, there is no impropriety. N.Y. State 402 (1975) ; N.Y. State 245 (1972). Indeed, if the impropriety involved in obtaining such information even where the interests of the lawyer’s client are adverse to those of the informant, as long as nothing which could arguably amount to the giving of legal advice is advanced by the lawyer in the course of obtaining that information. To be sure, in obtaining such information, the lawyer must at all times act with candor and should not misrepresent his status. DR 1-102(A)(4); ABA Inf.581 (1962). Where the lawyer’s intended informant refuses to divulge information unless and until he obtains legal advice, if the informants interests are either presently or potentially adverse to those of the lawyer or his client, the lawyer must desist.

See also, N.Y. State Opinion #577 (1986) (“[C]ommunication with non-party adverse witnesses without the consent of opposing counsel is ethically permissible under the Code of Professional Responsibility”).

There are additional constraints when dealing with an unrepresented person who may have an interest in conflict with those of the lawyer’s client. These constraints include the obligation to first determine whether that person actually is not represented by counsel.

This Committee, in response to an inquiry from an attorney representing personal injury victims who proposed to send a postcard to potential defendants in claims arising from motor vehicle accidents seeking, inter alia, the potential defendants’ comments on the accident, stated in opinion #89-42:

It is not proper to seek information going to the very merits of the controversy……before inquiring counsel knows whether the adverse party is represented by counsel.

In addition, this Committee drew attention to EC 7-1, that warns that the professional responsibility of a lawyer derives from membership in a profession which has the duty of’ assisting members of the public to secure and protect available legal rights and remedies, and EC 7-10, which states that the duty of a lawyer to represent his client with zeal does not militate against a lawyer’s concurrent obligation to treat with consideration all persons involved in the legal process and to avoid the infliction of needless harm.

In N.Y. State Opinion #607 (1990), the New York State Bar Association Committee on Professional Ethics considered a nearly identical fact situation, albeit one in which the inquiring attorney proposed going even further in soliciting information (stating “I would like to know your version of this accident — whether you feel the accident was your fault or the other party’s fault, and the reasons for your belief; and the names and addresses of any witnesses”). The State Bar imposed restrictions on the communication which went even further than had this Committee in Opinion #89-42:

Since the lawyer in the instant inquiry has not been advised whether the driver is represented by counsel, the lawyer does not “know” whether the driver is represented by counsel. The act of communicating with the driver by sending the documents is therefore not prohibited by DR 7-104(A)(1). Nevertheless, the substance and content of those documents must accord with the purposes and spirit of DR 7-104 (A) (1) . With them as our guide, we conclude that the lawyer, when sending the documents to the driver, must inform the driver that, in the event the driver is represented by counsel, the documents should be referred to counsel.

Implying a duty to instruct the party to refer documents to the party’s attorney in the event the party has one helps to insure that opposing counsel is not inadvertently bypassed, and that Canon 9’s teaching that a lawyer should avoid even the appearance of impropriety is observed. Further, the duty accords well with DR 7-04(A)(2), which mandates that the only advice a lawyer can give an unrepresented adverse person is to secure counsel. N.Y. State (1974) . Moreover, the duty acts as a prophylactic curtailing the willful ignorance or purposeful avoidance of the knowledge that opposing party is represented by counsel, while an opposite rule would tend to encourage such conduct.

In attempting to solicit information, the attorney should also be scrupulous in avoiding the giving of “prohibited advice” in excess of the advice to retain counsel. See, e.g., In Re Blum, 135 A.D.2d 253 (4th Dept. 1988) (attorney/co-executor’s suggestion to decedent’s brother and half sister that a proceeding be considered to set the will aside found to be in violation of DR 7-104 (A] [2] ) ; Nassau County Opinion #89-42 (suggestion by attorney for personal injury claimant to potential defendant that defendant contact certain suggested additional potential indemnitors to “minimize the risk of your personally being responsible for payment of any damages, ” found to constitute improper provision of legal advice) ; and Nassau County Opinion #92-29 (attempt by plaintiff’s attorney to get potential defendant to alter the defendant’s story regarding the merits of the controversy found to potentially violate DR 7- 104[A][21).

In addition, ABA/NBA Practice Guide 71:501 advises that:

A lawyer may not state or imply to an unrepresented person that the lawyer is disinterested. The lawyer has an obligation to make clear in any discussions with unrepresented persons the exact nature of the lawyer’s role and his interest in the matter under discussion.

In communicating with defendant’s daughter, inquiring counsel is required by Canon 9 to avoid even the appearance of professional impropriety, although his duty to the client should never be subordinate merely because the full discharge of his obligation may be misunderstood (EC 9-2). Nothing that inquiring counsel communicates to the daughter should, in any way, be reasonably construable as an attempted indirect communication with defendant himself. Such an attempt at indirect communication would violate DR 7-104(A)(1). Counsel should also be careful in exercising zeal in behalf of his client, to avoid any conduct that could reasonably be construed as involving dishonest, fraud, deceit or misrepresentation, or conduct that is prejudicial to the administration of justice, as proscribed by DR 1-102(4) (5).

[Approved by Executive Subcommittee on 8/22/95; Approved by Full Committee on 8/30/95]