If a client decides on her own to contact the represented opposing party, can her lawyer advise her on what to say?
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This page answers the general question as of 2002. Ezel answers yours: whether it's allowed on your facts, under the current New York Rules of Professional Conduct, with citations.
Plain-English summary
Clients often need to communicate directly with their counterpart to cement a settlement or break a negotiating logjam, and may rely heavily on their lawyer's advice when doing so. The Committee revisits its earlier opinion, N.Y. City 1991-2, which had read DR 7-104's bar on "caus[ing] another to communicate" with a represented party so broadly that a lawyer could not advise a client even about a communication the client herself conceived.
The opinion concludes that reading was overbroad and out of step with modern authority. DR 7-104 was amended in 1999 to add a safe harbor (DR 7-104(B)) allowing a lawyer to cause a client to communicate with a represented party and counsel the client about it, with reasonable advance notice to opposing counsel; EC 7-18 lets the lawyer even draft papers for the client to present. The Committee reasons that if a lawyer-initiated communication is protected with notice, then a client-conceived communication is protected a fortiori, and that where the client initiates it, the advance-notice requirement need not be followed. It marshals Model Rule 4.2 (and the ABA's deliberate rejection of language that would have barred advising clients to speak directly), the Ethics 2000 commentary, and Section 99 of the Restatement, all of which permit advising a client about a communication the client is legally entitled to make.
The opinion therefore narrows the meaning of "cause" to its dictionary sense (to prompt or initiate the contact), so the no-contact rule does not reach a lawyer's endorsement of, or advice about, a communication first raised by the client. It withdraws N.Y. City 1991-2. The opinion keeps an important guardrail from the Restatement: the lawyer may not assist the client to seek confidential information, invite the nonclient to act without counsel, or otherwise overreach, and specifically may not convert a client-initiated communication into a vehicle for the lawyer to communicate directly with the represented nonclient without notice and consent.
In practice
Under the New York Code as it stood at the time, the opinion holds that a lawyer may counsel a client on the substance of a communication the client conceived with a represented adverse party, without violating the no-contact rule. The opinion treats the client's autonomy and right to legal advice as central, and limits the lawyer only by the anti-overreaching principle: no using the client as a conduit to extract confidential information, to induce the other party to act without counsel, or to make the lawyer's own end-run around opposing counsel.
This opinion applies the former New York Code (DR/EC numbering). New York replaced the Code with the Rules of Professional Conduct effective April 1, 2009; the no-contact rule DR 7-104 now corresponds to Rule 4.2, and the anti-circumvention rule DR 1-102(A) to Rule 8.4(a). Verify the current rule text before relying on any specific requirement.
Common questions
Q: Can a lawyer tell a client what to say to the represented opposing party?
A: Yes, when the client conceived the contact. The opinion concludes DR 7-104 does not bar the lawyer from advising the client on the substance of such a communication.
Q: Does the lawyer have to notify opposing counsel first?
A: The opinion concludes that where the client (not the lawyer) initiates the communication, the DR 7-104(B) advance-notice provision need not be followed; notice is tied to lawyer-initiated contact.
Q: What can the lawyer not do?
A: The opinion concludes the lawyer may not assist the client to seek confidential information, invite the nonclient to act without counsel, or use the client as a vehicle for the lawyer to communicate directly with the represented party.
Q: Is the older opinion still good law?
A: No. The opinion expressly withdraws N.Y. City 1991-2, which had barred advising a client even about client-initiated communications.
Background and rules framework
The opinion interprets the former New York Code's no-contact rule DR 7-104(A)(1) and its DR 7-104(B) safe harbor, EC 7-18, and the anti-circumvention rule DR 1-102(A). The corresponding Model Rule is MR 4.2. It relies on Model Rule 4.2 and its Ethics 2000 commentary, Section 99 of the Restatement (Third) of the Law Governing Lawyers, and Niesig v. Team I, 76 N.Y.2d 363 (1990).
Citations and references
Rules of Professional Conduct:
- MR 4.2 (communication with represented persons) / NY DR 7-104, DR 7-104(B), EC 7-18
Cases:
- Niesig v. Team I, 76 N.Y.2d 363, 559 N.Y.S.2d 493 (1990), purposes of the no-contact rule
Other opinions cited:
- N.Y. City 1991-2 (withdrawn by this opinion)
- ABA Formal Op. 95-396; ABA Formal Op. 362 (1992)
See also
- ISBA Ethics Op. 09-01: Communications With Current and Former Corporate Constituents
- ABA Formal Op. 502: Communication With a Represented Person by a Pro Se Lawyer
- ABA Formal Op. 06-443: Contact With an Organization's Inside Counsel
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