Can a government lawyer attend and advise at a meeting with a represented contractor's non-lawyer staff, and when does the lawyer 'know' a party is represented?
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This page answers the general question as of 2003. 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 employed by a government agency dealt with non-lawyer representatives of government contractors in two recurring settings: attending agency meetings with contractor staff, and answering contractor questions about agency filing requirements. The committee addressed five questions about the no-contact rule, DR 7-104, where the contractor was sometimes known to employ counsel but did not bring counsel to the meeting.
On whether silent attendance is itself a prohibited "communication" (a question the committee called one of first impression), the committee read "communicate" by its ordinary meaning, transmitting information, and concluded that merely being present, without transmitting anything to the represented party, is not a DR 7-104(A)(1) communication. Such attendance fits within DR 7-104(B), which lets a lawyer cause and counsel the lawyer's own client to communicate with a represented party if reasonable advance notice is given to the represented party's counsel (EC 7-18). So the government lawyer may attend after giving that notice. The lawyer may also advise the agency's own representatives before and during the meeting, but must do so in a way that does not amount to communicating with the opposing party, which may require speaking during breaks or out of the opposing party's hearing depending on the circumstances.
The committee was clear that a lawyer may not state the agency's legal position to a known-represented party: a statement of legal position is a "communication" within DR 7-104(A)(1) and is barred when the other elements are met. On when a lawyer "knows" a party is represented, the committee held that knowing a company has in-house counsel does not by itself mean the lawyer knows counsel represents it on the particular matter; but where the lawyer has a reasonable basis to believe a party may be represented in the matter, the lawyer has a duty to inquire (citing N.Y. State 735, 728, and 663). Finally, where the lawyer does not know the contractor is represented, the committee concluded that stating the agency's own legal position, or answering questions about filing requirements, is not impermissible advice to an unrepresented party under DR 7-104(A)(2), because the lawyer is conveying the client agency's position rather than counseling the third party; for anything beyond ministerial matters, the committee said prudence suggests reminding the person that the lawyer represents the agency and that the contractor may wish to retain its own counsel.
In practice
Under the Code as it stood in 2003, the opinion concluded that a government lawyer could attend a meeting between principals with a represented contractor's staff if the lawyer gave opposing counsel reasonable advance notice and confined the lawyer's role to advising the agency's own people, never communicating the agency's position to the opposing party. The opinion held the lawyer must give that advice in a manner, and at times and places, that does not become a communication to the opposing party.
The opinion concluded the lawyer must take account of all relevant circumstances, including the parties' prior course of dealing, to decide whether the lawyer "knows" a party is represented, and must inquire when a reasonable basis exists to believe so. Where the lawyer does not know a party is represented, the opinion concluded that stating the agency's legal position or answering filing-requirement questions is not impermissible legal advice, though for non-ministerial matters prudence suggests reminding the person to consider retaining counsel.
Common questions
Q: Can a government lawyer sit in on a meeting with a represented party's non-lawyer staff?
A: Yes, if silent as to the opposing party. The opinion concludes attendance is not a prohibited "communication" and fits DR 7-104(B), provided the lawyer gives reasonable advance notice to opposing counsel.
Q: Can the lawyer advise the lawyer's own client during that meeting?
A: Yes. The opinion concludes the lawyer may advise the agency's representatives before and during the meeting, but must do so without it amounting to a communication to the opposing party, which may mean using breaks or speaking out of the party's hearing.
Q: Can the lawyer state the agency's legal position to the represented party?
A: No, if the party is known to be represented. The opinion holds a statement of legal position is a "communication" barred by DR 7-104(A)(1) absent the other party's counsel's consent.
Q: When does a lawyer "know" the other side is represented?
A: The opinion holds that knowing a company has in-house counsel is not enough; where the lawyer has a reasonable basis to believe a party is represented in the matter, the lawyer has a duty to inquire.
Q: Is telling an unrepresented contractor the agency's filing requirements "legal advice"?
A: No. The opinion concludes that stating the agency's own position or filing requirements is not impermissible advice under DR 7-104(A)(2), because the lawyer is conveying the client's position; for non-ministerial matters, prudence suggests reminding the person to consider counsel.
Background and rules framework
The opinion interprets New York's former Code of Professional Responsibility: DR 7-104(A)(1) (no communication with a represented party), DR 7-104(A)(2) (no advice to an unrepresented party with adverse interests), DR 7-104(B) (lawyer may counsel a client to communicate with a represented party after notice, a New York provision without a direct Model Rule counterpart), and DR 1-105 (choice of law), with EC 7-18. The committee applied Niesig v. Team I, 76 N.Y.2d 363 (1990), on which contractor representatives count as the represented party. The Model Rules analogues are Rule 4.2 (communication with represented persons), Rule 4.3 (dealing with unrepresented persons), and Rule 8.5 (choice of law). New York replaced this Code with the Rules of Professional Conduct in 2009; the DR numbers cited here are historical.
Citations and references
Rules of Professional Conduct:
- MR 4.2 (communication with a represented person)
- MR 4.3 (dealing with an unrepresented person)
- MR 8.5 (disciplinary authority; choice of law)
- NY DR 7-104(A)(1), DR 7-104(A)(2), DR 7-104(B), DR 1-105; EC 7-18
Cases:
- Niesig v. Team I, 76 N.Y.2d 363, 558 N.E.2d 1030 (N.Y. 1990), who counts as a represented party within a corporation
- W.T. Grant Co. v. Haines, 531 F.2d 671 (2d Cir. 1976)
Other opinions cited:
- N.Y. State 735 (2001), N.Y. State 728 (2000), N.Y. State 663 (1994): duty to inquire when a reasonable basis exists
- N.Y. State 652 (1993): representatives who can bind the principal are the represented party
See also
- NY State Bar Op. 812: Communication with a represented party
- NY State Bar Op. 785: Communication with an insurance adjuster
- 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
Source
- Landing page: https://nysba.org/ethics-opinion-768/
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