Can a New York lawyer email or write directly to a represented person if the lawyer copies that person's counsel at the same time?
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This page answers the general question as of 2009. Ezel answers yours: whether it's allowed on your facts, under the current New York Rules of Professional Conduct, with citations.
Plain-English summary
The Committee addressed whether the no-contact rule, then expressed in DR 7-104(A)(1) of the New York Code of Professional Responsibility (now Rule 4.2), allowed a lawyer to send a communication directly to a represented person as long as the lawyer copied that person's counsel at the same time. The opinion concluded it did not. The rule barred such a direct communication without "prior consent" to it, meaning actual consent and preferably express consent; the opinion stated that while consent could be inferred from the other lawyer's conduct or acquiescence, a lawyer who proceeded without securing express consent ran the risk of violating the rule if the other lawyer had not manifested consent.
The opinion reasoned that copying counsel did not eliminate the risk the rule guards against. There is no assurance a letter or email reaches the lawyer and the client at the same time; mail delays, work or travel schedules, or office distribution could leave the lawyer learning of the communication only after the client had already made a direct, uncounseled response, a risk the opinion noted is magnified with email. It anchored this in the rule's purpose as the Court of Appeals described it in Niesig v. Team I: the rule embodies fairness by preventing adverse counsel from reaching and exploiting a represented person directly, guarding against improvident settlements and ill-advised disclosures.
The opinion supported its conclusion with authority holding that copying counsel did not cure a direct contact, including AIU Ins. Co. v. The Robert Plan Corp. (enjoining a lawyer who wrote to corporate directors with a copy to company counsel) and ABA Formal Opinion 92-362 and ABA Informal Opinion 1348 (a lawyer may not send a settlement offer directly to the represented party, even with a carbon copy to opposing counsel, absent consent or legal authority).
In practice
Under this opinion, interpreting the New York Code as it stood in 2009 (the analysis carries forward to Rule 4.2), copying opposing counsel on a letter or email did not authorize sending it directly to the represented person; the lawyer needed the other lawyer's prior, and preferably express, consent, or specific legal authority. Per the opinion, consent could be inferred from the other lawyer's conduct, but a lawyer who relied on inferred consent bore the risk if the other lawyer had not in fact manifested consent.
Because New York replaced the Code with the Rules of Professional Conduct effective April 1, 2009, and the Rules have since been amended, verify the current text of Rule 4.2 before relying on the specific contours described here.
Common questions
Q: Does copying opposing counsel let me email a represented person directly?
A: No. The opinion concluded the no-contact rule still applied; a simultaneous communication to the represented person and her counsel was prohibited without the other lawyer's prior consent or legal authorization.
Q: What kind of consent is required?
A: Per the opinion, "prior consent" meant actual consent, preferably express. Consent could be inferred from the other lawyer's conduct or acquiescence, but a lawyer proceeding without express consent risked a violation if consent had not actually been manifested.
Q: Why isn't copying counsel enough?
A: The opinion reasoned there is no assurance the lawyer and client receive the communication at the same time, so the client might make a direct, uncounseled response before counsel sees it, a risk the opinion said is magnified with email.
Background and rules framework
The opinion interpreted the no-contact rule then codified at DR 7-104(A)(1) of the New York Code of Professional Responsibility, which corresponds to Model Rule 4.2 and current New York Rule 4.2. It relied on the rule's fairness rationale as stated in Niesig v. Team I and on ABA opinions applying the rule to settlement communications.
Citations and references
Rules of Professional Conduct:
- New York DR 7-104(A)(1) (no-contact rule) / Model Rule 4.2 / current New York Rule 4.2
Cases:
- Niesig v. Team I, 76 N.Y.2d 363 (1990) (purpose of the no-contact rule)
- AIU Ins. Co. v. The Robert Plan Corp., 17 Misc. 3d 1104(A), 851 N.Y.S.2d 56 (Sup. Ct. N.Y. County 2007) (copying counsel did not cure contact with corporate directors)
Other opinions cited:
- ABA Formal Op. 92-362; ABA Informal Op. 1348 (direct settlement communications to a represented party); ABA Formal Op. 95-396 (purpose of the anti-contact rules)
See also
- NYC Bar Ethics Op. 2009-5: Discouraging Unrepresented Witnesses from Voluntarily Cooperating
- ABA Formal Op. 07-445: Contact With Putative Class Members
Source
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