Must a lawyer follow opposing counsel's instructions to communicate only in writing and to copy opposing counsel's client on every message?
NY State Bar Ethics Opinion 1124: Communicating with opposing counsel and the opposing party
Short answer: A lawyer may communicate with opposing counsel in any manner he chooses, including by telephone, regardless of opposing counsel's instructions, but opposing counsel is not required to respond to that method. With opposing counsel's prior consent, a lawyer may, but need not, send opposing counsel's client copies of written communications addressed to counsel.
Disclaimer: This is an advisory ethics opinion. Advisory opinions are not binding; they interpret the New York Rules of Professional Conduct and are persuasive authority. This summary is for research purposes only and is not legal advice. Verify current rules before acting on any specific guidance.
About this page: The plain-English summary and Q&A below were written by Ezel based on the official opinion. We do not reproduce the opinion text on this page; follow the linked source for the official text, which controls.
Plain-English summary
The inquirer is a lawyer representing himself in litigation. Opposing counsel told him not to call by telephone but to communicate only in writing, and instructed that every email or writing be copied to the opposing party. The inquirer asks whether he must follow each instruction.
On the method of communication, the committee finds nothing in the Rules dictating how lawyers must communicate with each other. No Rule bars a lawyer from telephoning opposing counsel, and none requires opposing counsel to take the call. The committee observes that lawyers should work out an efficient method between themselves, and that email is often the most efficient mode, but the choice is not governed by the Rules.
On copying the opposing party, the committee turns to the Rule 4.2(a) no-contact rule, which bars communicating with a represented person about the matter absent the other lawyer's prior consent. Rule 4.2(c) makes clear the no-contact rule applies to a lawyer proceeding pro se, who may communicate with a represented counterparty only with consent or on reasonable advance notice to counsel. Here, opposing counsel's own instruction to copy the client supplies the prior consent Rule 4.2(a) requires (and Rule 1.2(e) lets a lawyer accede to reasonable requests of opposing counsel). That said, the committee finds nothing requiring the lawyer to copy the client: keeping the opposing party informed is opposing counsel's duty under Rule 1.4(a)(3), not the inquirer's. So the lawyer may copy the client but is not obligated to.
In practice
Under this opinion, a New York lawyer (including one appearing pro se) may choose how to communicate with opposing counsel and is not bound by opposing counsel's preferred method, though counsel need not respond to a method she dislikes. The no-contact rule of Rule 4.2 still governs the pro se lawyer's direct contact with the represented opposing party: such contact requires the other lawyer's prior consent or reasonable advance notice. Where opposing counsel has instructed that her client be copied, that instruction is itself the consent, so the lawyer may copy the client, but no Rule requires him to do so, because keeping the opposing client informed is opposing counsel's Rule 1.4(a)(3) responsibility.
Common questions
Q: Can a lawyer keep calling opposing counsel after being told to communicate only in writing?
A: Yes. No Rule dictates the method of lawyer-to-lawyer communication, so a lawyer may telephone opposing counsel regardless of the instruction; opposing counsel simply is not required to respond to that method (Opinion 1124 ¶ 3).
Q: Does the no-contact rule apply to a lawyer representing himself?
A: Yes. Rule 4.2(c) applies the no-contact rule to a pro se lawyer, who may communicate with a represented counterparty only with the other lawyer's consent or after reasonable advance notice (¶ 5).
Q: Must the lawyer copy opposing counsel's client on every email?
A: No. Opposing counsel's instruction supplies consent so the lawyer may copy the client, but nothing requires it; keeping that client informed is opposing counsel's duty under Rule 1.4(a)(3), not the inquirer's (¶¶ 6-7).
Background and rules framework
The opinion applies Rule 4.2 (Model Rule 4.2), the no-contact rule, including subsection (c) extending it to pro se lawyers, Rule 1.2(e) (Model Rule 1.2) on acceding to reasonable requests of opposing counsel, and Rule 1.4(a)(3) (Model Rule 1.4), which places the duty to keep a client informed on that client's own lawyer.
Citations and references
Rules of Professional Conduct:
- New York Rule 4.2(a), (c) (Model Rule 4.2): no-contact rule; application to pro se lawyers
- New York Rule 1.2(e) (Model Rule 1.2): acceding to reasonable requests of opposing counsel
- New York Rule 1.4(a)(3) (Model Rule 1.4): a lawyer's duty to keep the client informed
Other opinions cited:
- N.Y. State 1076 (2015): the lawyer's duty to keep the client reasonably informed under Rule 1.4(a)(3)
See also
- NY State Bar Op. 1125: No duty to respond to a third party's query
- NY State Bar Op. 1144: Limiting communications and withdrawing from a difficult client
- NY State Bar Op. 1126: Confidentiality owed to a prospective client
Source
- Landing page: https://nysba.org/ethics-opinion-1124/