Ezel / Ethics Opinions / NYSBA
NYSBA May 3, 2007

Can a developer's lawyer talk privately with individual town planning board members about a pending application when the board's counsel objects?

Short answer: Only within narrow limits. The committee concludes the no-contact rule permits such communications about pending determinations only if they concern policy issues alone and the lawyer gives the board's counsel reasonable advance notice, absent any state or local law to the contrary.

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This page answers the general question as of 2007. Ezel answers yours: whether it's allowed on your facts, under the current New York Rules of Professional Conduct, with citations.

Currency note: this opinion is from 2007
Subsequent statutory amendments, court decisions, or later opinions or rule amendments may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.
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About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official ethics opinion. The original opinion (linked on this page) is the authoritative source for any reliance.

Plain-English summary

In-house counsel for a shopping-center developer wanted to communicate privately and informally with the minority of town planning board members who supported a controversial project, while separate outside counsel handled the developer's formal representation. The planning board's outside counsel objected and directed that the developer's communications be limited to written submissions for the full board and the administrative record. The committee was asked whether the informal, member-by-member communications are ethical.

The committee analyzes the question under DR 7-104(A)(1), the no-contact rule, which bars a lawyer from communicating about the subject of a representation with a party known to be represented, absent the other lawyer's consent or authorization by law. Because consent was not given and the board is represented, the communications are barred unless either the board members are not "parties" or the contact is "authorized by law." Applying the Niesig v. Team I test for who counts as a represented "party" within an entity, the committee treats board members whose acts bind the board as parties. It concludes that communications confined to municipal development policy issues, with reasonable advance notice to the board's counsel, fall within what is permissible, balancing the no-contact rule against the lawyer's ability to address policy.

The committee attaches several caveats. It does not decide whether such private communications violate a state statute or local ordinance governing planning-board procedure or a local ethics code; it does not address ex parte contact with an adjudicatory body such as a zoning board of appeals, which raises different considerations; the lawyer may not deliberately elicit information protected by the board's attorney-client privilege or work product; and the lawyer must cease contact with any board member who asks him to stop.

In practice

The opinion holds, under the former Code as it stood at the time, that DR 7-104(A)(1) permits a private party's lawyer to communicate with individual planning board members about pending SEQRA, site-plan, and subdivision determinations only on two conditions: the communications concern municipal development policy issues alone, and the lawyer gives the board's counsel reasonable advance notice. The committee conditions the whole answer on the absence of a state or local law regulating the practice, and adds that the lawyer must avoid eliciting privileged or work-product material and must stop contacting any member who requests it.

Common questions

Q: Can a lawyer contact individual planning board members when the board's counsel objects?

A: Within limits. The committee concludes DR 7-104(A)(1) permits such contact about pending determinations only if it is confined to municipal development policy issues and the lawyer gives the board's counsel reasonable advance notice, and only where no state or local law bars the practice.

Q: Are planning board members "represented parties" under the no-contact rule?

A: Generally yes. Applying the Niesig v. Team I standard, the committee treats board members whose acts bind the board as parties, so the no-contact rule reaches them unless an exception applies.

Q: What can the lawyer not do in these communications?

A: The committee states the lawyer may not deliberately elicit information protected by the board's attorney-client privilege or work product, and must cease contact with any board member who asks him to stop; it also does not address ex parte contact with adjudicatory bodies like a zoning board of appeals.

Background and rules framework

The opinion interprets DR 7-104(A)(1), the no-contact rule (the analogue of ABA Model Rule 4.2), with EC 7-15 and EC 7-18, applying the New York Court of Appeals' Niesig v. Team I test for who is a represented "party" within an organization.

Citations and references

Rules of Professional Conduct:

  • MR 4.2 (communication with a represented person)
  • Former Code DR 7-104(A)(1); EC 7-15, EC 7-18

Cases:

  • Niesig v. Team I, 76 N.Y.2d 363 (1990), test for which entity employees are represented "parties"

Other opinions cited:

  • N.Y. State 652 (1993): application of the no-contact rule

See also

Source

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