In a civil case, can a lawyer interview an independent contractor working for the opposing corporate party without the consent of the corporation's counsel?
NY State Bar Ethics Opinion 735: Contacting an adverse party's independent contractors
Short answer: In a civil case a lawyer may interview an adverse corporation's independent contractor without opposing counsel's consent unless the contractor has personally retained counsel or is treated as represented by the corporation's counsel under the Niesig test, and even then the lawyer may not knowingly elicit privileged or work-product information.
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
The inquiry involved a lawyer in a civil lawsuit who wanted to contact and interview an accountant who worked several hours a week as an independent contractor for the opposing corporate party, without the consent of the corporation's counsel. The committee analyzed the question under DR 7-104(A)(1), the "no-contact" rule barring communication about the subject of the representation with a party the lawyer knows to be represented by counsel in the matter.
The committee explained that in noncriminal cases the rule applies to any represented "person," not just nominal parties, including represented witnesses. So the threshold question is whether the independent contractor is "represented." If the contractor has personally retained a lawyer in connection with the lawsuit, the contractor is plainly represented and the lawyer may not communicate without that lawyer's consent. If not, the question becomes whether the contractor is represented by the corporation's counsel, which is governed by the Court of Appeals' decision in Niesig v. Team I. Under Niesig, a represented corporation's counsel represents only those employees whose acts or omissions bind or are imputed to the corporation, or who implement counsel's advice; all other employees may be interviewed informally.
The committee saw no reason not to apply the Niesig analysis to independent contractors as to employees. So if the accountant could bind the corporation or was responsible for implementing its counsel's advice, contact would be barred without consent; otherwise the lawyer could interview the accountant, consistent with the rule that a lawyer may interview an unrepresented witness for the opposing side. The committee added an important limit: even when contact is permitted, the lawyer may not knowingly elicit information protected by the attorney-client privilege or work-product doctrine that the contractor is obligated to keep confidential, and if the only relevant information the contractor holds is so protected (as where the contractor was retained to assist the corporation's counsel), the lawyer may not communicate with the contractor about the matter at all.
Currency note
This opinion was issued in 2001, under New York's former Code of Professional Responsibility, which New York replaced with the Rules of Professional Conduct in 2009. 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 interview an adverse corporation's independent contractor without opposing counsel's consent?
A: The opinion concluded yes, unless the contractor has personally retained counsel in the matter or is treated as represented by the corporation's counsel under the Niesig test for which corporate people are off-limits.
Q: How does the Niesig test apply to a contractor?
A: The committee applied Niesig to contractors as to employees: contact is barred only if the contractor can bind the corporation, has acts imputed to it, or implements its counsel's advice. Mere-witness contractors may be interviewed informally.
Q: Are there limits on what the lawyer can ask?
A: Yes. Even when contact is allowed, the opinion concluded the lawyer may not knowingly elicit privileged or work-product information the contractor must keep confidential, and may not talk to the contractor at all if all the contractor's relevant information is so protected.
Background and rules framework
The opinion interpreted DR 7-104(A)(1) of New York's former Code of Professional Responsibility, the rule against communicating with a represented party about the subject of the representation without that party's lawyer's consent. The Model Rule analogue is Rule 4.2 (communication with a person represented by counsel). The committee expressly declined to address the rule's application in the criminal context. New York replaced the Code with the Rules of Professional Conduct in 2009; the DR number cited here is historical.
Citations and references
Rules of Professional Conduct:
- MR 4.2 (communication with a represented person)
- NY DR 7-104(A)(1)
Cases:
- Niesig v. Team I, 76 N.Y.2d 363 (1990), which corporate employees are off-limits under the no-contact rule
Other opinions cited:
- N.Y. State 728 (2000): a lawyer's duty of inquiry before concluding a person is unrepresented
- N.Y. State 700 (1998): a lawyer may not deliberately elicit privileged information from one not authorized to disclose it
See also
- NY State Bar Op. 1047: Government lawyer interviewing a represented person's clients
- NY State Bar Op. 1080: Contacting a public official represented by counsel
- NY State Bar Op. 1124: Communicating with opposing counsel and party
Source
- Landing page: https://nysba.org/opinion-735/