Communication With Non-Clients, Ethically
Rules 4.2 and 4.3 of the New York Rules of Professional Conduct impose varying duties on attorneys regarding their communications with other represented and unrepresented persons about the subject of the representation. While most attorneys know the basic premise of Rules 4.2 and 4.3, in everyday practice, these seemingly distinct rules that are designed to serve separate purposes, do not always operate independently in the course of a representation.
Rule 4.2(a), commonly known as the "no-contact rule," prohibits a lawyer from communicating about the subject matter of a representation with a party the lawyer knows to be represented by counsel, unless authorized by law or the lawyer obtains prior consent from the party's counsel. On its face, the rule appears relatively straightforward but it is not so simple once translated into practice.
Rule 4.2 is applicable both before a lawsuit has begun as well as in a non-litigation setting. In the civil context, the term "party" has a liberal interpretation and may apply not only to litigants but also to such others as represented witnesses, targets of a criminal investigation, potential parties to a civil litigation, others with an interest or right at stake, and anyone who has retained counsel in a matter on whose behalf a lawyer is acting.1
Rule 4.2 imposes a duty on an attorney only if that attorney "knows" that a party is represented. While actual knowledge is required and there is no specific duty to inquire, a lawyer may not ignore the obvious. A person's knowledge may be inferred from the circumstances.2 N.Y. State Bar Op. 728 (2000) observed that a party who has counsel in a criminal matter should be presumed to have counsel for related civil claims. N.Y. State Bar Op. 607 (1990) noted that when it is unclear whether a party is represented by counsel in a matter, the safest approach is to inform the party that in the event that he or she is represented by counsel, such communications should be referred to counsel.
Despite these prohibitions, Rule 4.2(b) states that "a lawyer may cause a client to communicate with a represented person unless that person is not legally competent, and may counsel the client with respect to those communications, provided the lawyer gives reasonable advance notice to the represented person's counsel that such communications will be taking place." Note, that while Rule 4.2(a) permits communication where prior consent is obtained, Rule 4.2(b) only requires "reasonable advance notice." The term "reasonable advance notice" means "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."3
Rule 4.2(b) does not expressly limit a client's ability to proactively communicate with a represented person and is triggered when the lawyer "causes" the client to initiate communication. Note, however, that bar association ethics opinions in New York place certain limitations on the attorney's role in client-initiated communications with an adversary. See N.Y. City Bar Op. 2002-2 (2002) (if the client "conceives of the idea" of communicating with the represented adversary, the lawyer may advise the client about it but must avoid helping the client to elicit confidential information or to encourage the adversary to proceed without counsel); N.Y. County Lawyers' Ass'n, Ethics Op. 618 (1973) (lawyer has an obligation to inform opposing counsel of his client's intention to discuss settlement with the adverse party); and N.Y. State Bar Op. 768 (2003) (lawyer cannot give advice to her client during a client-to-client call, absent reasonable advance notice to the opposing lawyer).
Rule 4.3 permits attorneys to communicate with unrepresented persons in certain circumstances. Under Rule 4.3, a lawyer must not state that he or she is disinterested or give legal advice to the unrepresented person, other than to advise such person to secure separate counsel. N.Y. State Bar Op. 477 (1977) clarified that although the rule clearly prohibits the lawyer from giving legal advice to an unrepresented person (except for advice to seek counsel), the practical application of the rule is to permit the attorney to provide "non-controvertible information" about the law so that the unrepresented person can understand why it is important to seek independent counsel, such as advising an unrepresented surviving spouse of the possible existence of his or her right to elect a statutory share against a will.4
In addition, Rule 4.3 provides that where the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer's role in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding.
Ability to Communicate
Rule 4.2 is titled, "Communication with Person Represented by Counsel" and Rule 4.3 is titled, "Communicating with Unrepresented Persons." Both rules regulate an attorney's ability to communicate with non-clients. From a practical standpoint, it is important to be aware of how these rules often interact, especially where the status of a person as "represented" or "unrepresented" is sometimes unclear or changes unexpectedly. The scenario below illustrates the interrelationship between Rules 4.2 and 4.3.
Scenario 1: Lawyer has no reason to believe that a witness to an incident, which has become the subject of civil litigation, is represented by counsel. Lawyer has been complying with Rule 4.3 until one day when the witness tells Lawyer, "let me check with my lawyer."
Since Lawyer had no prior knowledge of the representation, Rule 4.2 was likely not violated, but continuing communication at this point would result in a rule violation. In situations where it appears at the outset of the communication that the person is unrepresented (i.e., Rule 4.3 applies), but thereafter becomes clear it was not the case, the communication is no longer permitted, and the attorney should immediately cease communication.5 From that point onward, the attorney will need to proceed under Rule 4.2.
Conversely, an attorney operating under Rule 4.2 may be thrust into complying with Rule 4.3 when a previously represented party becomes unrepresented. The obvious scenario is where an attorney receives notice from the court or opposing counsel regarding the withdrawal of adverse counsel. N.Y. State Bar Op. 959 (2013) observed that when a lawyer knows that an adverse party's lawyer has withdrawn from representation or resigned from the bar, the attorney "may contact the adverse party to determine if he or she has retained new counsel or plans to represent himself or herself." However, a more difficult yet not uncommon situation arises where the attorney's ethical obligations may shift from under one rule to the other, as discussed below.