Are a state agency's staff attorneys responsible for a non-lawyer investigator's contact with a represented licensee when the investigators are not supervised by the lawyers?

Plain-English summary

A New York State agency employs both staff attorneys and non-lawyer investigators to oversee its licensees. Investigations usually proceed without supervision by counsel; when misconduct is found, an investigator prepares a report for counsel, who may then prosecute. Sometimes, before a matter reaches a staff attorney, an investigator learns a licensee under investigation is represented by counsel. The committee was asked what obligations the staff attorneys have, and whether they must prevent the investigators from continuing to communicate directly with the licensee.

The committee analyzes DR 1-104 (supervision and responsibility for non-lawyers) and DR 7-104 (communication with represented parties). It first assumes the investigators act under the lawyers' supervision: in that case, once the lawyers know the licensees are represented, they could not order or direct the investigators to communicate further without the represented party's counsel's consent or the DR 7-104(B) advance-notice procedure. But on the stated facts the investigators do not work under the staff attorneys' supervision. The committee finds the investigators are not "employed or retained" by the staff attorneys, do not "work at the firm," and are not "associated" with the lawyers within the meaning of DR 1-104; they are associated with the agency. So DR 1-104 does not apply, and the lawyers have no ethical duty to supervise them.

The committee adds that the agency could make supervision a condition of the lawyers' employment, in which case the DR 1-104 responsibility would follow and the investigators' conduct could be imputed to the lawyers. Ultimately imputation depends on whether the lawyer has "supervisory authority" over the non-lawyer's conduct, which turns on the operational relationship within the organization. The committee cautions that even without systemic supervision, the staff lawyers remain barred by DR 1-102(A)(2) ("circumvent through the actions of another") and DR 7-104(A)(1) ("cause another to communicate") from directing the investigators to make prohibited contact. It notes the new Rules effective April 1, 2009 are substantially identical to the DRs applied.

In practice

The opinion holds, under the former Code as it stood at the time, that responsibility for a non-lawyer investigator's conduct is not imputed to agency staff attorneys merely because the agency uses investigators; imputation requires that the lawyers have supervisory authority over them, whether by the operational structure or because the agency conditions the lawyers' employment on supervising them. Where there is no requirement or expectation that investigators operate under the lawyers' guidance, their conduct is not ordinarily imputed. The committee stresses a separate limit that does not depend on supervision: the staff lawyers themselves may not direct or cause the investigators to communicate with a person the lawyers know to be represented. The committee notes the parallel new Rules (5.3 and 4.2) are substantially identical.

Common questions

Q: Is a government lawyer responsible when an unsupervised investigator contacts a represented licensee?

A: The opinion concludes no, not on these facts: a non-lawyer investigator's conduct is not imputed to the staff attorneys unless the lawyers have supervisory authority over the investigators.

Q: What makes the investigators' conduct imputable to the lawyers?

A: The opinion explains imputation turns on whether the lawyer has "supervisory authority," which depends on the operational relationship; if the agency requires investigators to be instructed by counsel before investigating, conduct is generally imputed.

Q: Can the lawyer ever direct the investigator to contact a represented person?

A: The opinion explains that regardless of supervision, the lawyers may not direct or cause the investigators to communicate with a known-represented person without counsel's consent or the DR 7-104(B) advance notice, citing DR 1-102(A)(2) and DR 7-104(A)(1).

Background and rules framework

The opinion interprets former Code DR 1-104(C) and (D) (supervision of and responsibility for non-lawyers, the analogue of ABA Model Rule 5.3) and DR 7-104(A) and (B) (communication with represented parties, the analogue of ABA Model Rule 4.2). It notes the New York Rules effective April 1, 2009 are substantially identical to these provisions.

Citations and references

Rules of Professional Conduct:

• MR 5.3 (responsibilities regarding non-lawyer assistants); MR 4.2 (communication with represented persons)
• Former Code DR 1-104(C), (D); DR 7-104(A), (B); DR 1-102(A)(2)

Other opinions cited:

• N.Y. State 768 (2003): when a lawyer "knows" a counter-party is represented
• N.Y. State 735 (2001): defining "party"
• N.Y. County 737 (2007): imputation where investigators are instructed by counsel

See also

• NY State Bar Op. 846: Contacts by non-lawyer insurance company representatives
• NY State Bar Op. 1105: Imputed conflict from a part-time public defender
• NY State Bar Op. 1141: Co-counsel conflict imputation

Source

• Landing page: https://nysba.org/ethics-opinion-828/