When You Can Contact Others Who Are or Were Represented by Counsel: Part II

In Part I of this article, “When You Can Contact Others Who Are or Were Represented by Counsel” (NYLER April 2015), we explained the basic guidelines as to when a lawyer is allowed to directly contact another party who is represented by counsel under Rule 4.2 of the New York Rules of Professional Conduct (NYRPC)—the No-Contact Rule. We explained how New York’s No-Contact Rule differs from ABA Model Rule 4.2 and what general limitations and restrictions a lawyer must bear in mind to assure that he or she does not invite sanctions, disciplinary action, or even disqualification by engaging in such direct contact.

As detailed in Part I, a lawyer must remember that, while N.Y. Rule 4.2(a) speaks of direct contact with “parties” rather than “persons,” the No-Contact Rule is sometimes applied to non-parties, such as potential witnesses and others with special knowledge of the transaction at issue or the facts pertinent to a pending or possible litigation, particularly in civil matters. The Rule also prohibits contact by “surrogates” such as investigators or other persons under the control of the lawyer; and it applies regardless of whether the contact is initiated by the other party and not solicited by the lawyer.

Part I pointed out some exceptions to the Rule, including for example, if the contact is “authorized by law” such as when legal process is being served. Part I also explained that, while a lawyer does not have duty to inquire whether the other person has counsel, the lawyer cannot “turn a blind eye” to that possibility or probability. Likewise, the lawyer cannot elicit confidential or privileged information that he or she or she knows the other party’s counsel would advise against his or her client disclosing.

In Part II we examine how the No-Contact Rule applies in situations that commonly arise in practice.

What Rules Apply When the Other Party Is an Entity?

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