Does a New York lawyer violate Rule 3.2 by refusing to give adverse counsel copies of pleadings that are already in the public court file?
NY State Bar Ethics Opinion 984: Refusing to give adverse counsel copies of public filings
Short answer: A lawyer does not violate Rule 3.2 by declining to give opposing counsel copies of pleadings that are already in the public court file, because refusing to cooperate is not an affirmative step that "causes" needless expense.
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.
Plain-English summary
Adverse counsel asked the inquiring lawyer for copies of pleadings and other documents already filed in the case that formed the basis of a default judgment. The lawyer had those documents stored electronically but they might not be available electronically from public sources; the documents were in the court file. The lawyer wanted to refuse, which would force adverse counsel to travel to the clerk and photocopy them, and asked whether that refusal violates Rule 3.2.
The opinion assumes, without deciding, that no law or court rule requires the lawyer to produce the documents (noting that if there were such a requirement, refusal would violate Rule 3.2 and implicate Rules 3.3(a) and 8.4(b)). It then construes Rule 3.2, which bars using "means that have no substantial purpose other than to delay or prolong the proceeding or to cause needless expense." This is the committee's first opinion construing Rule 3.2, which entered the New York rules on April 1, 2009 and has no direct predecessor in the former Code.
The opinion concludes that "cause needless expense" means taking affirmative steps that result in needless expense, not merely declining to cooperate. It reasons that reading Rule 3.2 to require sharing whenever the cost of sharing is minimal would compel a lawyer to, for example, supply copies of cited cases or lend salaried staff, which the courts did not intend. The opinion also notes the documents were presumably produced at the expense of adverse counsel's client, so there is an implicit cost to sharing. It adds that while Rule 3.2 does not compel sharing, nothing in the rules prohibits agreeing to the request, citing Rule 1.2(e), and the lawyer should consider consulting the client first under Rule 1.4(a)(2).
In practice
The opinion holds that, under the New York rules as they stood at the time, a lawyer who is not otherwise required by law or court rule to produce documents does not violate Rule 3.2 by declining to give adverse counsel copies of filings available from the court. Per the opinion, "causing" needless expense requires an affirmative step, and a refusal to cooperate is not one. The opinion is explicit that the lawyer remains free to provide the documents, citing Rule 1.2(e), and that the lawyer should consider consulting the client under Rule 1.4(a)(2) before deciding.
Common questions
Q: Does refusing to give opposing counsel copies of public filings violate Rule 3.2?
A: No. The opinion concludes that a refusal to cooperate is not an affirmative step that "causes" needless expense, so declining to provide documents available from the court does not violate Rule 3.2.
Q: Would the answer change if a law or court rule required producing the documents?
A: Yes. The opinion assumes no such requirement applies, but states that if the lawyer were legally required to provide the documents, refusing would violate Rule 3.2 and could implicate Rules 3.3(a) and 8.4(b).
Q: Is the lawyer allowed to share the documents anyway?
A: Yes. The opinion sees no prohibition on acceding to the request and points to Rule 1.2(e), adding that the lawyer should consider consulting the client first under Rule 1.4(a)(2).
Background and rules framework
The opinion interprets New York Rule 3.2 (delay of litigation), which differs from its Model Rule 3.2 counterpart; the opinion notes that ABA Model Rule 3.2 instead directs a lawyer to "make reasonable efforts to expedite litigation consistent with the interests of the client." The opinion also references Rule 1.2(e) (acceding to reasonable requests of opposing counsel) and Rule 1.4(a)(2) (consulting the client about means).
Citations and references
Rules of Professional Conduct:
- MR 3.2 / NY Rule 3.2 (delay of litigation; "no substantial purpose other than to delay or cause needless expense"; Comment [1])
- NY Rule 1.2(e) (exercising judgment to accede to reasonable requests of opposing counsel)
- NY Rule 1.4(a)(2) (reasonably consulting the client about means)
Other opinions cited:
- N.Y. State 469 (1977): a lawyer may not interpose a general denial knowing the client has no valid defense
See also
- NY State Bar Op. 991: confidential foreclosure information and a lawyer's real estate venture
- NY State Bar Op. 982: obligation to disclose potential fraud on a tribunal
- NY State Bar Op. 997: paying a third party for physical evidence
Source
- Landing page: https://nysba.org/ethics-opinion-984/