Can a lawyer contact an opposing party directly when that party once claimed to have a lawyer, but the lawyer never confirms or denies the representation?
NY State Bar Ethics Opinion 663: Contacting an adverse party whose lawyer will not respond
Short answer: The opinion concluded that a lawyer may communicate directly with an opposing party who once said he was represented only after a complete and thorough inquiry, including a series of letters culminating in a warning that continued silence will be taken to mean the party is not represented, leaves clear evidence and no actual knowledge that the party is in fact represented by counsel.
Disclaimer: This is an advisory ethics opinion. Advisory opinions are not binding; they interpret the New York State Bar Association's 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
A creditor's lawyer wanted to contact a debtor directly. The debtor had earlier said attorney X represented him, but when the creditor's lawyer contacted X, X never replied to letters or calls; the lawyer then sent a series of certified letters, the last warning that if X did not respond within 15 days the lawyer would assume X did not represent the debtor and would contact the debtor directly. The committee answered the question yes, but only under tight conditions.
The committee restated DR 7-104(A)(1), the no-contact rule, and its prior view (N.Y. State 607 (1990)) that the rule protects the attorney-client relationship, that even an inadvertent bypass violates it, and that an opposing "party" includes a potential litigant before any suit is filed. But the rule bars only contact with a party the lawyer "knows" is represented; where the lawyer has not been advised of representation, the lawyer does not "know," and may communicate, provided the communication complies with the rest of the Code and includes a caution to refer the matter to counsel if the person is in fact represented.
The committee distinguished N.Y. City 79-13 (1979) and N.Y. County 625 (1974), which barred direct contact, on the ground that those inquirers had not sent letters addressing the subject of representation and warning that silence would be treated as proof of no representation. Here, the series of letters did exactly that. The committee cautioned that mere doubt cannot overcome the presumption created by the client's own statement that he is represented; a lawyer cannot rely on studied ignorance or on facts that merely suggest the attorney is neglecting the case. There must be a complete and thorough inquiry and clear evidence that the party is not represented. After following the described procedure, the lawyer may justifiably conclude she does not "know" the debtor is represented, but any later communication must still comply with DR 7-104(A)(2) and direct the debtor to refer the communication to any lawyer who does represent him.
Currency note
This opinion was issued in 1994, under New York's former Code of Professional Responsibility, which New York replaced with the Rules of Professional Conduct in 2009. The no-contact rule now appears as 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: Can a lawyer go around an opposing party's lawyer if that lawyer never responds?
A: Under this opinion, only after a complete and thorough inquiry. The committee allowed direct contact where a series of letters, including a warning that silence would be treated as no representation, leaves clear evidence the party is not actually represented.
Q: Is a single claim of representation enough to trigger the no-contact rule?
A: Yes. The committee held the opposing party's own statement that he is represented creates a presumption that he is, and mere doubt or the attorney's apparent neglect cannot overcome it.
Q: What must a permitted direct communication contain?
A: It must comply with DR 7-104(A)(2) and include a directive that, if the party is in fact represented, the communication and any attached papers should be referred to his counsel.
Background and rules framework
The opinion interpreted New York's former Code: DR 7-104(A)(1) (the no-contact rule barring communication with a represented party) and DR 7-104(A)(2) together with EC 7-18 (limits on dealing with an unrepresented person). The closest Model Rule analogues are Rule 4.2 (communication with a represented person) and Rule 4.3 (dealing with an unrepresented person). New York replaced the Code with the Rules of Professional Conduct in 2009; the provisions cited here are historical.
Citations and references
Rules of Professional Conduct:
- MR 4.2 (communication with a person represented by counsel)
- MR 4.3 (dealing with an unrepresented person)
- NY DR 7-104(A)(1), (2); EC 7-18
Cases:
- United States v. Jamil, 546 F. Supp. 646 (E.D.N.Y. 1982): "party" includes a potential litigant
Other opinions cited:
- N.Y. State 607 (1990): scope of the no-contact rule and the "knows" requirement
- N.Y. City 79-13 (1979); N.Y. County 625 (1974): direct contact barred absent an affirmative indication of termination
See also
- NY State Bar Op. 959: Contacting an adverse party whose lawyer withdrew
- NY State Bar Op. 656: Contacting a child who has a law guardian
- NY State Bar Op. 735: Contacting an adverse party's independent contractors
Source
- Landing page: https://nysba.org/opinion-663/