When a government agency is the opposing party in litigation, which of its officials may a lawyer interview without the agency's counsel present?

Plain-English summary

The committee considered whether DR 7-104(A)(1), the no-contact rule barring a lawyer from communicating about the subject of a representation with a party the lawyer knows to be represented by counsel, applies when the adversary is a government agency, and if so which officials are off-limits. The inquirer represented a discharged prison guard challenging his dismissal and wished to interview, without notice to agency counsel, fellow guards who witnessed the incident, supervisory officials whose acts might be imputed to the agency, and officials with authority to settle.

Applying the New York Court of Appeals' decision in Niesig v. Team I, which defined the represented "party" within an organization to include employees whose acts bind the entity or are imputed to it for liability and those implementing counsel's advice, the committee reached three conclusions. Witnesses who merely observed the incident may be interviewed outside the presence of and without notice to agency counsel, provided the lawyer identifies himself and his interest. Supervisory officials whose acts or omissions may be imputed to the agency for liability may not be interviewed without agency counsel present. As to officials with authority to settle, DR 7-104(A)(1) as construed in Niesig generally bars ex parte communication, though the committee recognized that certain communications with high-level officials relating to the subject of the representation may be permitted as "authorized by law" through the constitutional right to petition and have access to the government.

The committee stressed that DR 7-104(A)(1) does not distinguish between governmental and private parties: the government has the same right to representation as any party, and the rule's purpose of preventing a lawyer from taking advantage of an uncounseled adversary applies equally to high-ranking officials and corporate executives. It reconciled this with the right to petition by suggesting that the right is honored where counsel sends written comments to the decision-maker with a copy to the official's litigation counsel, stating that the matter is in litigation and that the official may wish to consult that counsel before responding. The committee declined to opine on questions of law, including whether the First Amendment might in a given case override the rule, and noted that a lawyer who guesses wrong about an "authorized by law" exception risks sanction or disqualification.

Currency note

This opinion was issued in 1991, before New York replaced the Code of Professional Responsibility with the New York Rules of Professional Conduct, effective April 1, 2009. The no-contact rule now appears as Rule 4.2, and its application to organizations and government parties is addressed in the rule's comments. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Does the no-contact rule apply when you are suing a government agency?

A: The committee concluded that DR 7-104(A)(1) applies when the opposing party is a government agency; the rule does not distinguish between governmental and private parties.

Q: Which agency employees can a lawyer interview without the agency's lawyer present?

A: Under the Niesig test the committee applied, employees who were merely witnesses to the event may be interviewed, but officials whose acts or omissions may be imputed to the agency for liability, and those who implement counsel's advice, may not be contacted ex parte.

Q: Can a lawyer talk to officials who can settle the case?

A: The committee concluded that DR 7-104(A)(1) generally bars ex parte communication with officials who have settlement authority, subject to a limited "authorized by law" allowance grounded in the right to petition the government.

Q: How can a lawyer petition a government decision-maker during litigation?

A: The committee suggested the right to petition is honored where counsel sends written comments to the decision-maker, copies the official's litigation counsel, and states that the matter is in litigation and that the official may wish to consult that counsel before responding.

Background and rules framework

The opinion applied New York Code DR 7-104(A)(1), the rule barring communication about the subject of a representation with a represented party absent that party's counsel's consent or authorization by law. It construed the rule through Niesig v. Team I, which set the New York standard for which employees of an organizational party count as the "party." The analysis corresponds to ABA Model Rule 4.2 (communication with a person represented by counsel), whose comments address communications with organizations and with government officials and the "authorized by law" exception.

Citations and references

Rules of Professional Conduct:

• New York Code DR 7-104(A)(1) (communication with a represented party)
• MR 4.2 (communication with person represented by counsel)

Cases:

• Niesig v. Team I, 76 N.Y.2d 363, 559 N.Y.S.2d 493 (1990), which organizational employees count as the represented "party"
• Frey v. Department of Health and Human Services, 106 F.R.D. 32 (E.D.N.Y. 1985), government's duty to advance the public interest
• Papanicolaou v. Chase Manhattan Bank, N.A., 720 F. Supp. 1080 (S.D.N.Y. 1989), sanction and disqualification for improper ex parte contact
• New York State Association for Retarded Children v. Carey, 706 F.2d 956 (2d Cir. 1983), court-supervised interviews of government staff

Other opinions cited:

• N.Y. City 1988-8: submitting comments to an agency head to urge favorable exercise of discretion
• N.Y. State 160 (1970): a governmental unit has the same rights and responsibilities as any party

See also

• NYC Bar Formal Op. 2007-01: The No-Contact Rule Applied to Contacts With a Represented Entity
• NYC Bar Formal Op. 2009-01: No-Contact Rule and Simultaneous Communications
• NYC Bar Formal Op. 2002-3: No-Contact Rule and Advising a Client to Communicate

Source

• Landing page: https://www.nycbar.org/reports/formal-opinion-1991-4/