NYC-BAR 2009

Can a New York lawyer ask an unrepresented, non-subpoenaed witness to refrain from voluntarily giving information to the opposing party?

Short answer: Yes. The opinion concludes a lawyer in civil litigation may ask an unrepresented witness to refrain from voluntarily providing information to other parties, but may not advise the witness to evade a subpoena, cause the witness to become unavailable, or tamper with the witness.

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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.

Disclaimer: Advisory only. Not binding precedent.

About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official ethics opinion. The original opinion (linked on this page as a PDF) is the authoritative source for any reliance.

View original ethics opinion (PDF)

Plain-English summary

The Committee addressed whether a lawyer may ask a witness who has not been subpoenaed, and is not otherwise under court process, to refrain from voluntarily giving information to other parties in the litigation. The opinion concludes that nothing in the New York Rules of Professional Conduct prohibits such a request. It reasons that the request is not barred on the face of Rule 3.4 and declines to imply a restriction the Rule does not contain; it also notes that New York courts, including the Court of Appeals in Niesig v. Team I, have endorsed informal discovery through voluntary interviews of non-party witnesses.

The opinion draws clear limits. A lawyer may not advise an unrepresented witness to evade a subpoena or cause the witness to become unavailable, and may not tamper with the witness, for example by bribing or intimidating the witness to obtain favorable testimony. The opinion ties these limits to the prohibitions on obstructing access to evidence and on dishonest or prejudicial conduct.

On the line between permissible requests and improper legal advice to an unrepresented person, the opinion concludes a lawyer may inform an unrepresented witness that the witness has no obligation to communicate voluntarily with others about the matter and may suggest the witness consider retaining counsel, because telling the witness of that lack of obligation states an indisputable legal point rather than the kind of advice barred when dealing with unrepresented persons. The opinion also states a lawyer may ask an unrepresented witness to notify the lawyer if contacted by an adversary, so long as the lawyer does not suggest the witness must comply, which the opinion concludes does not unduly pressure the witness, particularly when paired with the suggestion to consider counsel.

In practice

Under this opinion, as it interpreted the New York Rules in 2009, a lawyer in civil litigation may ask an unrepresented, non-subpoenaed witness not to volunteer information to the other side, and may tell the witness that the witness is under no obligation to do so while suggesting the witness consider retaining counsel. Per the opinion, the lawyer may also ask the witness to report adversary contacts, provided the lawyer does not imply the witness must comply.

The opinion's limits are firm: it concludes a lawyer may not advise a witness to evade a subpoena, may not cause the witness to become unavailable, and may not bribe or intimidate the witness. Because the Rules have been amended since 2009, verify the current text of Rules 3.4 and 4.3 before relying on the specific lines the opinion draws.

Common questions

Q: Can a lawyer ask a non-party witness not to talk to the other side?

A: Yes. The opinion concludes that, in civil litigation, a lawyer may ask an unrepresented, non-subpoenaed witness to refrain from voluntarily providing information to other parties; nothing in the Rules prohibits the request.

Q: Where is the line the lawyer cannot cross?

A: Per the opinion, the lawyer may not advise the witness to evade a subpoena, cause the witness to become unavailable, or tamper with the witness through bribery or intimidation.

Q: Can the lawyer tell an unrepresented witness they have no duty to cooperate?

A: Yes. The opinion concludes telling the witness of the absence of any obligation to communicate voluntarily states an indisputable legal point, and the lawyer may also suggest the witness consider retaining counsel.

Q: Can the lawyer ask the witness to report contacts from the other side?

A: The opinion states a lawyer may ask the witness to notify the lawyer if contacted by an adversary, so long as the lawyer does not suggest the witness must comply.

Background and rules framework

The opinion interprets New York Rules of Professional Conduct 3.4 (fairness to opposing party and counsel, including obstructing access to evidence and witness tampering), 4.3 (dealing with unrepresented persons), 8.4 (misconduct), and 3.3 (candor), corresponding to the parallel Model Rules. It situates the analysis against New York's endorsement of informal witness interviews, citing Niesig v. Team I.

Citations and references

Rules of Professional Conduct:

New York Rule 3.4 / Model Rule 3.4 (fairness to opposing party; access to evidence; witness tampering)
New York Rule 4.3 / Model Rule 4.3 (dealing with unrepresented persons)
New York Rule 8.4 / Model Rule 8.4 (misconduct)
New York Rule 3.3 / Model Rule 3.3 (candor toward the tribunal)

Cases:

Niesig v. Team I, 76 N.Y.2d 363 (1990) (informal interviews of non-party witnesses)

Source

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