Can a New York lawyer ask a client to name an emergency or alternate contact person, and reach out to that person when the lawyer cannot otherwise reach the client?
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This page answers the general question as of 2020. Ezel answers yours: whether it's allowed on your facts, under the current New York Rules of Professional Conduct, with citations.
Plain-English summary
A lawyer who had been unable to reach a litigation client by phone or email during the COVID-19 pandemic asked whether it is permissible to have clients designate a third-person contact for use when the lawyer cannot reach the client directly, and if so, when the lawyer may contact that person and what may be disclosed.
The opinion concludes that the practice is permissible. Rule 1.4 makes adequate client communication essential, which requires effective means of reaching the client. No ethical rule prevents a client from sharing emergency or alternate contacts (names of people likely to know the client's status or whereabouts), and it is for the client to decide what to provide. Unless the lawyer and client have agreed to restrict it, no specific triggering event is required before the lawyer uses the alternate channel; when ordinary means fail, the lawyer may try to reach the client through the designated person.
On confidentiality, the committee finds little basis for concern in the typical case. The lawyer would usually need to disclose only that the lawyer has reason to reach, but has been unable to reach, the client. That information is typically not "confidential information" under Rule 1.6(a) because it is not privileged, is unlikely to be embarrassing or detrimental, and the client (by making the designation) accepted that the lawyer may have reason to disclose it. The committee notes that some scenarios could implicate confidentiality (for example, where the mere fact of representation by a particular lawyer, such as a criminal or divorce lawyer, could embarrass the client), in which case the lawyer would analyze Rule 1.6(a) and the consent and exception provisions of 1.6(a)(1), (a)(2), and (b). The committee adds that a lawyer is not stymied when no designation was made: even then, the lawyer may contact third persons who might know the client's whereabouts and inquire without disclosing confidential information.
In practice
Under this opinion, a New York lawyer may, at the outset of a representation, ask the client to designate a person the lawyer can contact if the client becomes unreachable, and may later use that channel when ordinary means fail. The opinion holds that contacting the designated person to say only that the lawyer has been unable to reach the client usually involves no confidential information under Rule 1.6(a). Where the very fact of representation or the substance the lawyer must convey could embarrass or harm the client, the opinion directs the lawyer to run the Rule 1.6 confidentiality and consent analysis before disclosing.
Common questions
Q: Can a lawyer ask a client for an emergency or alternate contact person?
A: Yes. Per the opinion, no ethical rule prevents it, and it supports the lawyer's Rule 1.4 duty to maintain effective communication; it is for the client to decide what contact information to provide.
Q: When may the lawyer actually contact that person?
A: Per the opinion, unless the lawyer and client agreed to restrict it, no specific triggering event is required; when the lawyer's ordinary means of reaching the client are unavailing, the lawyer may contact the designated person.
Q: Does contacting the alternate contact breach client confidentiality?
A: Per the opinion, usually not. Saying only that the lawyer has reason to reach but cannot reach the client is typically not confidential information under Rule 1.6(a). In scenarios where disclosure could embarrass or harm the client, the lawyer must apply the Rule 1.6 confidentiality and consent analysis first.
Q: What if the client never designated anyone?
A: Per the opinion, the lawyer is not stymied; the lawyer may contact third persons who might know the client's status or whereabouts and inquire about the client without disclosing confidential information.
Background and rules framework
The opinion interprets New York Rule 1.4 (communication), which requires effective means of reaching the client, and Rule 1.6 (confidentiality), particularly the 1.6(a) definition of confidential information and the consent and exception provisions in 1.6(a)(1), 1.6(a)(2), and 1.6(b). These correspond to ABA Model Rules 1.4 and 1.6.
Citations and references
Rules of Professional Conduct:
- New York Rules of Professional Conduct 1.4; 1.6(a), 1.6(a)(1), 1.6(a)(2), 1.6(b)
- ABA Model Rules 1.4, 1.6 (analogues)
See also
- NY State Bar Op. 1203: Withdrawal Over COVID-19 Health Risk in Immigration Court
- NY State Bar Op. 1192: Retention and Disposition of a Lawyer's Closed Files
Source
- Landing page: https://nysba.org/ethics-opinion-1189/
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