Ezel / Ethics Opinions / NYSBA
NYSBA 2011-11-14

Can a criminal defense lawyer interview a complaining witness who is represented by counsel in a separate, related criminal matter, without that counsel's consent?

Short answer: Yes. Rule 4.2's no-contact bar protects only a represented party to the matter, and a non-party witness is not a party, so defense counsel may interview the witness without the consent of the lawyer representing the witness in a separate criminal matter, as long as counsel does not violate Rules 3.4 or 8.4. The opinion does not extend to civil matters.
Currency note: this opinion is from 2011
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.
Disclaimer: Advisory only. Not binding precedent.
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 at the bottom of this page) is the authoritative source for any reliance.

NY State Bar Ethics Opinion 884: No-Contact Rule and Witnesses

Short answer: A lawyer representing a party in a criminal matter may interview a non-party witness without the consent of the lawyer who represents that witness in a separate criminal matter, because Rule 4.2's no-contact rule protects only a represented party, not a witness.

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.

View original opinion

Plain-English summary

A criminal defendant charged with burglary and robbery wished, through counsel, to interview the complaining witness. That witness was cooperating in the prosecution but was himself the subject of a separate drug-possession indictment in which he was represented by counsel, and a conviction would violate his probation. Defense counsel asked whether he could interview the witness without the consent of the witness's lawyer (paragraphs 1 through 2).

Rule 4.2(a), the "no-contact" rule, bars a lawyer from communicating about the subject of a representation with a party the lawyer knows to be represented by another lawyer in the matter, absent that lawyer's consent or legal authorization. The committee identified two issues: whether the witness is a "party" to the matter, and whether he is represented "in the matter." Although Comment [2] would extend the rule to any represented person, the committee held the comments are guidance only and were not adopted by the Appellate Divisions; where a comment conflicts with the rule's text, the rule controls (paragraphs 3 through 6).

Reviewing the history, the committee noted that a 1999 proposal to change "party" to "person" in former DR 7-104(A) was reversed by the Administrative Board, which restored "party" at the urging of prosecutors who did not want to need consent to interview every represented non-party witness. The committee read "party" to mean an actual party to the matter, supported by Grievance Committee v. Simels, 48 F.3d 640 (2d Cir. 1995), which held that a defense lawyer did not violate the rule by interviewing a witness represented by counsel on charges in a related but separate matter (paragraphs 7 through 8).

Because the drug-possession matter and the robbery matter, though related, were distinct and the complaining witness was only a witness rather than a co-defendant, Rule 4.2 did not apply, and defense counsel did not need the witness's lawyer's consent. The committee cautioned that counsel must still avoid violating Rules 3.4(a)(1) and (2), 8.4(b) and (d), and Rule 4.4 (rights of third persons), and noted that the witness's own lawyer remains free to advise the client not to speak with anyone outside counsel's presence and that the witness may insist on counsel's presence. The committee expressly limited its conclusion to criminal matters and did not reach whether Rule 4.2 covers non-party persons in civil proceedings (paragraphs 9 through 15).

In practice

The opinion holds that, under Rule 4.2 as it stood at the time, the no-contact rule in a criminal case protects only an actual "party" to the matter, so a lawyer for one party may interview a non-party witness even when that witness is represented by counsel in a separate, related criminal matter, without the other lawyer's consent. The committee drew the line at the word "party": the comments would reach any represented person, but because the Appellate Divisions adopted only the rule's text and the Administrative Board deliberately kept "party," the narrower reading controls. The committee flagged the limits on the interview itself (Rules 3.4, 4.4, and 8.4) and confined the holding to criminal matters, noting the committee treats the rule more broadly in civil cases.

Common questions

Q: The witness has his own lawyer in another case. Do I need that lawyer's permission to interview him?

A: No, on these facts. Rule 4.2 protects a represented "party," and a non-party witness in a separate, distinct matter is not a party, so consent is not required (paragraphs 13, 15).

Q: Why doesn't Comment [2], which refers to any represented "person," control?

A: The committee held the comments are guidance only and were not adopted by the Appellate Divisions; where a comment conflicts with the rule, the rule's word "party" controls (paragraph 6).

Q: Are there limits on how I conduct the interview?

A: Yes. The committee cautioned that counsel must not violate Rules 3.4(a)(1) and (2) (obstruction and inducing false testimony), 8.4(b) and (d), or Rule 4.4 (rights of third persons) (paragraphs 9, 13).

Q: Can the witness's lawyer still tell him not to talk to me?

A: Yes. The committee noted that nothing prevents the witness's lawyer from advising the client not to speak with anyone outside counsel's presence, and the witness may insist on having counsel present (paragraph 14).

Background and rules framework

The opinion interprets New York Rule 4.2(a) (the no-contact rule), with reference to Rule 1.0(k) (the definition of "know"), Rule 3.4(a)(2) (not procuring a witness's unavailability), and Rule 4.4 (respect for the rights of third persons), corresponding to ABA Model Rules 4.2, 3.4, and 4.4. The analysis turns on the deliberate retention of the word "party" (rather than "person") in the New York rule and its Code-era predecessor DR 7-104.

Citations and references

Rules of Professional Conduct:

  • MR 4.2 / NY Rule 4.2(a): the no-contact rule, limited to a represented "party"
  • MR 3.4 / NY Rule 3.4(a)(2): not advising a person to become unavailable as a witness
  • MR 4.4 / NY Rule 4.4: respect for the rights of third persons
  • NY Rule 1.0(k): definition of "know"

Cases:

  • Grievance Committee for the Southern District of New York v. Simels, 48 F.3d 640 (2d Cir. 1995), interviewing a witness represented in a related but separate matter did not violate the no-contact rule
  • United States v. Santiago-Lugo, 162 F.R.D. 11 (D.P.R. 1995), reading "party" in Model Rule 4.2 restrictively

Other opinions cited:

  • N.Y. State 735 (2001) and N.Y. State 785 (2005): broader application of the no-contact rule in non-criminal matters
  • N.Y. State 463 (1977): a putative father's lawyer could contact an unrepresented mother who was not a "party"

See also

Source