NYSBA 2012-01-30

Can a lawyer seeking restitution for a crime victim contact the subject of the criminal investigation directly when the subject has a criminal defense lawyer?

Short answer: Not without first asking. Because the civil restitution claim is closely related to the criminal investigation, the victim's lawyer must inquire of the subject's criminal counsel; direct contact is barred under Rule 4.2 unless that counsel consents, disavows representing the subject on restitution, or the law authorizes it.

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 Not binding precedent.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 904: Contacting the Subject of an Investigation Who Is Represented by Counsel

Short answer: A lawyer seeking restitution for a crime victim may not contact the subject of a criminal investigation into the same facts when the lawyer knows the subject is represented by criminal counsel, unless that counsel consents, the law authorizes the contact, or the criminal defense lawyer, upon inquiry, disavows representing the subject on the restitution claim.

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 lawyer represented an investor who lost money and believed the investment manager (the Subject) had committed a financial crime. The investor complained to authorities, who opened a criminal investigation, and news reports indicated the Subject was represented by counsel in that investigation. The investor asked the lawyer to contact the Subject directly, outside the criminal process, to seek restitution. The question was whether Rule 4.2(a), the no-contact rule, barred that direct contact (paragraphs 1 through 3).

The committee analyzed Rule 4.2(a), which bars communicating about the subject of a representation with a party the lawyer knows to be represented by counsel in the matter, absent that counsel's consent or legal authorization. It first asked whether the restitution claim and the criminal investigation were the same "matter," which Rule 1.0(l) defines to include an "investigation" and a "claim." The committee found the two closely intertwined but distinct matters, because they involve different parties (the prosecutor is a party only to the criminal matter, the investor only to the civil one) (paragraphs 4 through 8, 12).

Because the matters are distinct, the next question was whether the Subject's criminal counsel also represented him on civil restitution. The committee held the lawyer could not ignore the no-contact rule: where a lawyer has a reasonable basis to believe a person is represented and can identify counsel, the lawyer must inquire of that counsel rather than the person directly, citing N.Y. State 768 and 728. So the lawyer must first contact the criminal defense attorney. If that attorney disavows representing the Subject on restitution, Rule 4.2 does not apply and the lawyer may contact the Subject; if the attorney confirms representation on restitution, Rule 4.2 bars the contact, which protects the Subject from making unguarded admissions that could harm him in the criminal matter (paragraphs 9 through 12).

Finally, the committee held the Subject is a "party" within Rule 4.2 even though no restitution litigation had been filed, because the committee has never limited "party" to formal litigants; the no-contact rule reaches a represented person with an interest at stake before suit, citing N.Y. State 735 and 607 and McHugh v. Fitzgerald. The committee expressly did not address the conduct of prosecutors or criminal defense counsel, or who is a "party" in criminal matters (paragraphs 13 through 15).

In practice

The opinion holds that, under New York Rule 4.2(a), a lawyer pursuing civil restitution may not make direct contact with the subject of a related criminal investigation whom the lawyer knows to be represented by counsel, without first inquiring of that counsel. The committee made the duty of inquiry the operative step: the lawyer must approach the known criminal defense attorney, and direct contact with the subject becomes permissible only if that attorney disavows representing the subject on the restitution claim, if the attorney consents, or if the law authorizes it. The committee treated the criminal and civil matters as related but distinct and confirmed that a person can be a "party" under Rule 4.2 before any lawsuit is filed.

Common questions

Q: Is a civil restitution claim the same "matter" as a related criminal investigation?

A: No, the committee treated them as closely related but distinct matters, because they involve different parties and processes; Rule 1.0(l) defines "matter" to include both an investigation and a claim, but the two here are not a single unitary matter (paragraphs 7, 8, 12).

Q: Can I just contact the represented subject directly about restitution?

A: No. Where you have a reasonable basis to believe the person is represented and can identify counsel, Rule 4.2 and prior opinions require you to inquire of that counsel first, not the person directly (paragraphs 10, 11).

Q: What if the criminal defense lawyer says he doesn't handle the restitution side?

A: Then Rule 4.2 does not apply to the restitution matter, and the lawyer may contact the subject directly about restitution. If the criminal lawyer confirms he represents the subject on restitution, the contact is barred absent his consent (paragraph 11).

Q: Does the no-contact rule apply before any restitution lawsuit is filed?

A: Yes. The committee held a person can be a "party" under Rule 4.2 even before litigation is commenced, because the rule reaches represented persons with an interest at stake, not only formal litigants (paragraphs 13, 14).

Background and rules framework

The opinion interprets New York Rule 4.2(a) (the no-contact rule) together with the definitions of "knows" in Rule 1.0(k) and "matter" in Rule 1.0(l), corresponding to ABA Model Rule 4.2. The analysis turns on three questions the rule poses: whether the lawyer knows the person is represented in the matter, whether the restitution claim is the same matter as the criminal investigation, and whether the subject is a "party," with the duty of inquiry resolving the practical path.

Citations and references

Rules of Professional Conduct:

MR 4.2 / NY Rule 4.2(a): no communication with a represented party absent counsel's consent or legal authorization
NY Rule 1.0(k): "knows"; actual knowledge may be inferred from circumstances
NY Rule 1.0(l): definition of "matter" (includes investigation and claim)

Cases:

McHugh ex rel. Kurtz v. Fitzgerald, 719 N.Y.S.2d 785 (3d Dep't 2001), no-contact rule applies before litigation is commenced
Matter of Searer, 950 F. Supp. 811 (W.D. Mich. 1996), discipline for relying on the represented person's word about consent

Other opinions cited:

N.Y. State 768 (2003); 735 (2001); 728 (2000); 663 (1994): duty of inquiry and the scope of "party"
N.Y. State 607 (1990): no-contact rule reaches a potential litigant pre-suit
N.Y. City 2009-1: risk of inferring a represented person's counsel's consent

Source

Landing page: https://nysba.org/ethics-opinion-904/