Can a lawyer challenging a split board of education's decision contact the dissenting board members without the board attorney's consent?

Plain-English summary

A petitioner's attorney sought to review a board of education's decision and wanted to contact the board members who had voted in the minority against it, without the consent of the board's attorney. The committee answered that this would not be improper under the limited circumstances described. DR 7-104(A)(1) bars communicating with a party known to be represented by counsel without that counsel's consent or authorization by law, and N.Y. State 160 (1970) applied that rule to governmental units, which have the same rights and responsibilities in a controversy as any other corporation or individual.

The committee framed the crucial question as whether an individual member of a public body must be considered an adverse party regarding a decision he opposed. It concluded that the overriding public interest in letting the public and their representatives obtain the views of, and facts from, public officials means minority members should not be treated as adverse parties to the constituents they were selected to represent. So the committee read DR 7-104(A)(1) as implicitly creating a limited exception where a public body is involved, not extending beyond such public entities. It noted California reaches a similar result by statute.

The committee added a practical limit: absent consent, communications with members of a public body in an adversary proceeding should be made only where the public official has indicated a desire to speak with opposing counsel.

Currency note

This opinion was issued in 1975, before New York replaced the Code of Professional Responsibility with the Rules of Professional Conduct in 2009 (communication with represented persons is now governed by Rule 4.2). Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Does the no-contact rule apply to a government body represented by counsel?

A: Under this opinion, yes as a baseline; the committee applied DR 7-104(A)(1) to governmental units per N.Y. State 160 (1970), then recognized a narrow public-body exception.

Q: Why could counsel contact the dissenting board members?

A: Per the opinion, minority members who opposed the contested decision are not adverse parties to their constituents, and the public interest favors access to their views, so the no-contact rule yields a limited exception.

Q: Is there a condition on making contact without the board attorney's consent?

A: Yes. The committee said such communications should be made only where the public official has indicated a desire to speak with opposing counsel.

Background and rules framework

The opinion applies DR 7-104(A)(1) of the then-current New York Code, the rule against communicating with a represented party, and draws on N.Y. State 160 (1970)'s application of that rule to governmental units. The current analogue is Rule 4.2 (communication with person represented by counsel), whose application to government officials remains a recurring question.

Citations and references

Rules of Professional Conduct:

• MR 4.2 (communication with person represented by counsel)
• NY DR 7-104(A)(1)

Other opinions cited:

• N.Y. State 160 (1970): DR 7-104(A)(1) applies to governmental units
• ABA 117 (1934): a lawyer may interview an adverse party's employees
• N.Y. City 613 (1942); N.Y. County 528 (1964): split authority on interviewing an adverse corporation's employees

See also

• NY State Bar Op. 402: A lawyer-employed investigator befriending a witness
• NY State Bar Op. 407: Failing to respond to opposing counsel

Source

• Landing page: https://nysba.org/opinion-404/