Can a New York lawyer write directly to the other driver in an accident, before suit and before knowing if that driver has a lawyer, to ask for a statement?

Plain-English summary

A plaintiff's personal injury lawyer proposed to send the other driver a letter and a "statement form" asking the driver to describe the accident, identify witnesses, and give the driver's insurer and policy limits, with the letter sent before any action was commenced and before the lawyer had been told whether the driver was represented by counsel. The committee analyzed the proposal under DR 7-104(A)(1), the no-contact rule, which bars a lawyer from communicating about the subject of the representation with a party the lawyer "knows" is represented by counsel, absent that counsel's consent. It described the rule's purpose, drawing on Jamil and other authorities, as shielding the adverse party from the imbalance of skill and knowledge between laymen and lawyers and protecting the attorney-client relationship from even inadvertent or well-intended bypass.

The committee resolved two questions it had not previously addressed directly. First, it held that "party" in DR 7-104(A)(1) is broad enough to include a potential litigant, so the absence of a commenced action does not lift the rule's protection for a represented party. Second, because the inquiring lawyer had not been told whether the driver was represented, the lawyer did not "know" the driver was represented, so the act of sending the documents was not itself prohibited by DR 7-104(A)(1). The committee held, however, that the substance and content of the documents must accord with the purpose and spirit of the rule, and concluded that the lawyer must inform the driver that, if the driver is represented by counsel, the documents should be referred to that counsel. It reasoned that a less experienced recipient might be enticed by an invitation to give "your version," threatening the opposing party's attorney-client relationship; that DR 7-104(A)(2) limits the advice a lawyer may give an unrepresented adverse person to securing counsel; and that the duty serves as a prophylactic against willful ignorance of the fact of representation, consistent with Canon 9's caution to avoid even the appearance of impropriety.

Currency note

This opinion was issued in 1990, under New York's former Code of Professional Responsibility, which New York replaced with the Rules of Professional Conduct in 2009 (where the no-contact rule appears as Rule 4.2 and dealings with unrepresented persons as Rule 4.3). 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: Can a New York lawyer contact the opposing party before a lawsuit is filed?

A: Yes, if the lawyer does not know the party is represented. The committee held that the no-contact rule protects a represented party even before suit, but because the lawyer here had not been told the driver was represented, sending the documents was not itself barred.

Q: What must the communication include?

A: A statement that, if the party is represented by counsel, the communication should be referred to that counsel. The committee held this is required so that opposing counsel is not inadvertently bypassed.

Q: Does the no-contact rule apply before a case is filed?

A: Yes. The committee held that "party" in DR 7-104(A)(1) includes a potential litigant, so the rule's protection does not depend on a pending lawsuit where the lawyer knows the person is represented.

Q: What can a lawyer say to an unrepresented adverse person?

A: Under DR 7-104(A)(2), the only advice a lawyer may give an unrepresented adverse party is to secure counsel.

Background and rules framework

The opinion interpreted DR 7-104(A)(1) (no communication with a party known to be represented, absent that counsel's consent) and DR 7-104(A)(2) (a lawyer may not give an unrepresented adverse person advice other than to secure counsel), informed by EC 7-18 and Canon 9. The closest Model Rule analogues are Rule 4.2 (communication with a person represented by counsel) and Rule 4.3 (dealing with an unrepresented person).

Citations and references

Rules of Professional Conduct:

• MR 4.2 (communication with a represented person)
• MR 4.3 (dealing with an unrepresented person)
• NY DR 7-104(A)(1); DR 7-104(A)(2); EC 7-18; Canon 9

Cases:

• United States v. Jamil, 546 F. Supp. 646 (E.D.N.Y. 1982): "party" includes a potential litigant; purpose of the no-contact rule
• United States v. Hammad, 858 F.2d 834 (2d Cir. 1988): DR 7-104(A)(1) can apply before formal proceedings; the duty to inquire into representation

Other opinions cited:

• N.Y. State 577 (1986): communications between represented adversaries are best controlled by counsel
• N.Y. State 358 (1974): advising an unrepresented adverse party to secure counsel

See also

• NY State Bar Op. 879: The no-contact rule applied to a lawyer acting pro se
• NY State Bar Op. 1080: Contacting a public official represented by counsel
• NY State Bar Op. 1047: Government lawyer interviewing a represented person's clients

Source

• Landing page: https://nysba.org/opinion-607/