Ezel / Ethics Opinions / NYSBA
NYSBA 2013-02-21

If the opposing party's lawyer has withdrawn or been disbarred, may the other lawyer contact the opposing party directly to find out whether they have new counsel?

Short answer: Yes. When a lawyer knows the adverse party's counsel has withdrawn from the matter or resigned from the bar, the no-contact rule (4.2) no longer applies and Rule 4.3 permits contacting the party to learn if they have new counsel or will proceed pro se, as long as the lawyer gives no legal advice.
Currency note: this opinion is from 2013
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 Not binding precedent.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 959: Contacting an adverse party whose lawyer withdrew

Short answer: A lawyer who knows that the adverse party's lawyer has withdrawn from the representation or resigned from the bar may contact the adverse party directly to find out whether they have retained new counsel or plan to represent themselves. Rule 4.2's no-contact bar does not apply once the lawyer knows the party is no longer represented, and Rule 4.3 governs the contact, so the lawyer must give no legal advice.

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A lawyer in a litigated matter knew that the adverse party's lawyer had withdrawn from the representation and had also withdrawn from the bar because of a pending investigation. The lawyer asked whether he could contact the adverse party directly to learn whether the party had retained new counsel or intended to proceed pro se.

The committee starts with Rule 4.2, the "no contact" rule, which bars communicating about the subject of the representation with a party the lawyer knows to be represented by another lawyer, without that lawyer's consent. By contrast, Rule 4.3 allows a lawyer to communicate with an unrepresented person, so long as the lawyer does not state or imply disinterest and, where the person's interests could conflict with the client's, gives no legal advice other than the advice to secure counsel.

The hinge is whether the lawyer "knows" the party is represented. Citing N.Y. State 663 (1994), the committee notes that in doubtful cases a lawyer must make a "complete and thorough inquiry" into whether representation continues. But where the lawyer knows that opposing counsel has resigned from the representation or is no longer a member of the bar, the lawyer has reason to believe the party is unrepresented. In that situation Rule 4.3, not Rule 4.2, applies, and the lawyer may contact the party to ask whether new counsel has been retained or the party will proceed pro se, taking care not to give legal advice.

In practice

The opinion holds that, under the New York rules as they stood in 2013, once a lawyer knows the adverse party's counsel has withdrawn or left the bar, Rule 4.2 no longer bars direct contact, and Rule 4.3 permits a limited communication to learn the party's representation status. The committee identifies the controlling factor as the lawyer's knowledge that the party is no longer represented, and it cabins the permitted contact: the lawyer must not give the unrepresented party legal advice beyond the advice to obtain counsel.

Common questions

Q: Can I contact the opposing party directly if their lawyer has withdrawn from the case?

A: Yes, once you know the lawyer has withdrawn or left the bar. Per paragraph 4, Rule 4.2 stops applying when the lawyer knows the party is no longer represented, and Rule 4.3 permits contact to confirm the party's status.

Q: What can I say in that contact?

A: Only enough to learn whether the party has new counsel or will proceed pro se. Under Rule 4.3, the lawyer must not imply disinterest and must give no legal advice other than to advise the party to secure counsel.

Q: What if I am not sure the party is still represented?

A: Then Rule 4.2 may still apply. Citing N.Y. State 663 (1994), the committee says a lawyer in a doubtful case must make a complete and thorough inquiry into whether representation continues before contacting the party.

Background and rules framework

The opinion interprets Rule 4.2 (Model Rule 4.2, communication with a represented person) and Rule 4.3 (Model Rule 4.3, dealing with an unrepresented person). The analysis turns on the "knows" element of Rule 4.2 and on Rule 4.3's limits on advising an unrepresented person whose interests may conflict with the client's.

Citations and references

Rules of Professional Conduct:

  • MR 4.2 / NY Rule 4.2 (communication with a represented person; the "no contact" rule)
  • MR 4.3 / NY Rule 4.3 (dealing with an unrepresented person; no legal advice beyond advising counsel)

Other opinions cited:

  • N.Y. State 663 (1994): when a lawyer "knows" a previously represented party is no longer represented, and the duty to make a complete and thorough inquiry in doubtful cases.

See also

Source