NEW YORK STATE BAR
Opinion #607 -
Topic: Communication with Adverse Party
Digest: Prior to commencement of suit and to being
advised the adverse party is represented by counsel, a lawyer may
communicate with the party, but must inform the party that, in the event
the party is represented by counsel, such communications should be
referred to counsel
Code: Canon 9; EC 7-18; DR 7-104(A)(1),(2)
May a lawyer representing a person injured in an
automobile accident send a letter and "statement form" to the driver of
the automobile that injured his client where such communication occurs
prior to the commencement of any action and prior to the lawyer being
advised the driver is represented by counsel?
A plaintiff's personal injury lawyer is considering
instituting the procedure of sending a letter and "statement form" to
the driver of the automobile that injured his client. The letter advises
the driver that the lawyer is representing the injured person and
instructs the driver to complete and return. in the self-addressed,
stamped envelope, the statement form to the lawyer because "(t)here are
sometimes several sides and versions to an accident and, before
proceeding further, 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 statement form asks the driver to describe and sketch
how the accident occurred and what caused the accident. The letter also
instructs the driver to refer the letter to the driver's insurance
carrier if the driver is insured, and to return an enclosed postcard
informing the lawyer of the name of the insurance company and the
insurance policy limits, The lawyer proposes sending the documents to
the driver prior to the commencement of any action in the matter, and
prior to the lawyer being advised the driver is represented by counsel
The lawyer inquires whether it is ethically permissible to correspond
with the driver in this manner.
The time-honored ethical rule prohibiting a lawyer
from communicating with a party known to be represented by counsel is
codified in DR 7-104(A)(1), which provides:
During the course of his representation of a client a
lawyer shall not (c)ommunicate or cause another to communicate on the
subject of the representation with a party he knows to be represented by
a lawyer in that matter unless he has the prior consent of the lawyer
representing such other party or is authorized by law to do so (emphasis
The purpose of this well-established and respected
rule is to preserve the proper functioning of the attorney-client
relationship and to shield the adverse party from improper approaches.
ABA 108 (1934) In United States v. Jamil, 546 F. Supp. 646, 652 (E.D.
N.Y. 1982), rev'd on other grounds, 707 F.2d 638 (2d Gir. 1983) the
This salutary rule is fundamental to the effective
functioning of the legal profession. There could be no reliable
attorney-client relationship without an ethical shield against improper
approaches to opposing counsel's client. The ethical prohibition
protects an adverse party from the imbalance of skill and knowledge
between laymen and lawyers (citations omitted).
This Committee has previously stated that.
"’(i)n the interests of fair play and expeditious resolution of
disputes, the legal system functions best when communications between
represented adversaries are controlled by their counsel'." NY. State 577
(1986), quoting ABA Inf. 1496 (1983). EG 7-18 similarly advises that
"[t]he legal system in its broadest sense functions best when persons in
need of legal advice or assistance are represented by their own
Because this standard is so vital to ethical practice,
and the intention of the rule is to prevent a person from being deprived
of the advice of retained counsel by bypassing such counsel, "an
attorney must guard against even an inadvertent or negligent bypass of
opposing counsel" Jamil, 546 F. Supp. at 652; In re McCaffrey, 275 Or.
23, 549 P 2d 666, 668 (1976). Further, "current authorities agree. that
the rule is designed to prevent opposing counsel from impeding an
attorney's performance and that the scope of the rule therefore extends
even to well-intended approaches." American Bar Foundation, Annotated
Code of Professional Responsibility, Comment, 332 (1979); Abeles v.
State Bar, 9 Cal. 3d 603, 609, 510 P 2d 719, 108 Cal. Rptr. 359 (1973).
The rule prohibits communication even if the purpose is merely to
investigate the facts. In re Snyder, 51 Bankr. 432, 438 (Bankr. D. Utah
The instant inquiry presents two issues this Committee
has never directly addressed with regard to the rule prohibiting
communication with a party known to be represented by counsel First is
the question whether the driver is a 'party' within the meaning of DR
7-104(A)(1) when the communication is made prior to the commencement of
an action. We find that the word "party" has an "expansive definition
(that) include(s) a person who is a potential litigant," Jamil, 546 F.
Supp. at 654, and that the absence of a formal commencement of
adversarial proceedings does not vitiate DR 7-104(A)(1)'s ethical
proscription against unauthorized direct communications with a "party"
represented by counsel In United States v. Hammad,
858 F. 2d 834 (2d Cir. 1988), a prosecutor used an
informer to record conversations with the defendant and, significantly,
used the artifice and misrepresentation of a sham subpoena to help the
informer to elicit admissions. This communication occurred prior to the
indictment, but in the absence of the defendant's retained counsel. Such
a communication in the absence of counsel did not violate the
defendant's Sixth Amendment rights because such rights do not attach
before formal adversarial proceedings are commenced against a defendant.
The court held, however, that such a communication prior to the
commencement of formal adversarial proceedings violated DR 7-104(A)(1),
which applies to criminal as well as civil litigations, when aided by
the prosecutor's misconduct in issuing the sham subpoena. Id. at 836-40.
C., United States v. Buda, 718 F. Supp. 1094 (W.D.N.Y. 1989) Similarly,
in Jamil, supra, the Eastern District of New York concluded that for DR
7-104(A)(1) to be applicable in a criminal action "it is sufficient that
the client is being investigated as a possible defendant in a potential
criminal proceeding" because its "application depends upon the existence
of the attorney-client relationship, not upon the existence of a pending
lawsuit." Jamil, 546 F. Supp. at 653. See also N. Y City 101 (1928)
(attorney may not interview for fact finding purposes opposing party
represented by counsel although suit has not been commenced); N. Y. City
302 (1934) (attorney for defendant may not negotiate a matter with the
opposite injured party represented by counsel but should deal only with
the party's counsel, although no suit has been commenced).
The second issue raised by the instant inquiry is the
implication of the plaintiff lawyer’s lack of knowledge as to
whether the driver is represented by counsel DR 7-104(A)(1) only bars
communication with a party the lawyer "knows" is represented by counsel.
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
A client is generally told by his or her lawyer to
refer to the lawyer any communications received from any parties in the
matter. A sophisticated client will understand and follow this
instruction, but a less experienced person may naively view such a
letter from a lawyer as part of the normal procedures of the lawyer's
"game" with which he is not acquainted. The client may be enticed by
hearing from a lawyer that there are "several sides and versions to an
accident' and 'I would like to know your version.' Such contact
threatens the opposing party's attorney-client relationship, impedes
opposing counsel's performance, and fails to protect the "adverse party
from the imbalance of skill and knowledge between laymen and lawyers,"
Jamil, 546 F. Supp. at 652, thereby undermining the very purposes of the
rule of DR 7-104(A)(1). Absent a duty to inform the party to refer the
documents to counsel if the party is represented, such contact allows
the party to be taken advantage to be influenced or coerced by opposing
counsel, and "be deprived of the advice of retained counsel."
Though we do not impute such negative motives to the
instant inquirer, we note again that even a well-intended or inadvertent
bypass of opposing counsel violates DR 7-104(A)(1). Jamil, supra;
McGaflrey, supra; Snyder, supra. 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 7-104(A)(2), which mandates that the only advice a lawyer can
give an unrepresented adverse person is to secure counsel N.Y. State 358
(1974). Moreover, the duty acts as a prophylactic curtailing the willful
ignorance or purposeful avoidance of the knowledge that the opposing
party is represented by counsel, while an opposite rule would tend to
encourage such conduct.
Along these lines, in United States v. Hammad, 678 F.
Supp. 397 (E.D. NY 1987), rev'd on other grounds, 858 F. 2d 834 (2d Cir.
1988), discussed above, the government argued that the prosecutor did
not "know" the defendant was represented by counsel. The District Court,
finding a violation of DR 7-104(A)(1), explained that the government
should have 'pursued its inquiry into the nature of ...representation
before sending its agent to discuss the subject matter of the case with
Mr. Hammad." Id., 678 F. Supp. at 399. This finding of a violation of DR
7-104(A)(1) was affirmed by the Second Circuit. Id., 858 F. 2d at 840.
See also In re Snyder, 51 Bankr 432, 437 (Bankr. D Utah 1985) (violation
of DR 7-104(A)(1) where "the debtor's attorney knew or should have known
(the creditors) were represented by counsel") (emphasis added); Ga. 86-4
(1986) ("If the plaintiff's lawyer needs information as to the name of
the insured's insurer, he or she may properly write the insured for this
information. But the contents of the letter shall be limited to no more
than a demand, a request for the necessary information and a suggestion
to seek counsel").
Prior to the commencement of suit and to being advised
the adverse party is represented by counsel, a lawyer may communicate
with the party, but must inform the party that, in the event the party
is represented by counsel, such communications should be referred to