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End-of-life notice: American Legal Ethics Library

As of March 1, 2013, the Legal Information Institute is no longer maintaining the information in the American Legal Ethics Library. It is no longer possible for us to maintain it at a level of completeness and accuracy given its staffing needs. It is very possible that we will revive it at a future time. At this point, it is in need of a complete technological renovation and reworking of the "correspondent firm" model which successfully sustained it for many years.

Many people have contributed time and effort to the project over the years, and we would like to thank them. In particular, Roger Cramton and Peter Martin not only conceived ALEL but gave much of their own labor to it. We are also grateful to Brad Wendel for his editorial contributions, to Brian Toohey and all at Jones Day for their efforts, and to all of our correspondents and contributors. Thank you.

We regret any inconvenience.

Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.


New York Legal Ethics

IV. TRANSACTIONS WITH PERSONS OTHER THAN CLIENTS

4.1   Rule 4.1 Truthfulness in Statements to Others

4.1:100   Comparative Analysis of New York Rule

Primary New York References: DR 7-102(A)(3), DR 7-102(A)(5)
Background References: ABA Model Rule 4.1, Other Jurisdictions
Commentary:
NY Commentary: Simon's N.Y. Code of Prof. Resp. Annot. (1999 ed.) Canon 7, et seq.

4.1:101      Model Rule Comparison

NY DR 7-102(A)(5), which prohibits material false statements of any kind to anyone, is substantially the same as paragraph (a) of Model Rule 4.1. This New York Rule is fully discussed in Section 3.3:200 "False Statements to a Tribunal." NY DR 7-102(B), which sets forth guidelines for a lawyer who learns that a client or other person has perpetrated a fraud, is substantially the same as paragraph (b) of Model Rule 4.1. In addition, NY DR 7-102(A)(3) provides that a lawyer "shall not conceal or knowingly fail to disclose that which he is required by law to reveal." NY DR 7-102(B) is more fully discussed in Section 3.3:300, "Disclosure to Avoid Assisting Client Crime or Fraud."

4.1:102      Model Code Comparison

NY DR 7-102(A)(5) and NY DR 7-102(B) are virtually identical to the Model Code.

4.1:200   Truthfulness in Out-of-Court Statements

Primary New York References: DR 7-102(A)(3), DR 7-102(A)(5)
Background References: ABA Model Rule 4.1, Other Jurisdictions
Commentary: ABA/BNA § 71:201, ALI-LGL § 157
NY Commentary: Simon's N.Y. Code of Prof. Resp. Annot. (1999 ed.) Canon 7, et seq.

Relevant Disciplinary Rules

NY DR 7-102(A)(5), which prohibits a lawyer from "knowingly making a false statement of law or fact" to anyone embodies the requirement of candor expressed in both Model Rules 3.3 (concerning statements to a tribunal) and 4.1 (concerning statements to "others"). See discussion of NY DR 7-102(A)(3), (4) and (5) in Section 3.3:200 "False Statements to a Tribunal."

Relevant Ethics Opinions

Discovery of Client's Material Inaccuracies During Negotiations: New York County Lawyers' Assoc. Comm. on Prof. Ethics, Op. No. 686, 1991 WL 755942 (July 9, 1991) (lawyer who learns that information given by client in negotiation is materially inaccurate may either withdraw or voluntarily disclose misstatement).

Relevant Cases

Deception During Settlement Negotiations: Lawyer deception in negotiations can lead to liability for fraud. In Slotkin v. Citizens Casualty Co., 614 F.2d 301 (2d Cir. 1979) cert. denied, 449 U.S. 981 (1980), a defense lawyer was found liable for fraud in settlement of a medical malpractice suit where the lawyer stipulated that "to the best of his knowledge" there was no excess insurance cover age, when his client's files, which were in the law firm's possession during trial, included letters from the excess carriers. See also In re McGrath, 96 A.D.2d 267, 468 N.Y.S.2d 349 (1st Dept. 1983) (suspension of lawyer who made representations similar to those in Slotkin).

4.1:300   Disclosures to Avoid Assisting Client Fraud [see also 1.6:370]

Primary New York References:
Background References: ABA Model Rule 4.1(b), Other Jurisdictions
Commentary: ABA/BNA § 71:201, ALI-LGL §§ 117A, 151, Wolfram §§ 12.6, 13.3
NY Commentary: Simon's N.Y. Code of Prof. Resp. Annot. (1999 ed.) Canons 4 and 7, et seq.

See Section 3.3:201 "Disclosure to Avoid Assisting Client Crime or Fraud" and Section 3.3:202 "Prohibition on Counseling or Assisting Fraud on a Tribunal."

4.2   Rule 4.2 Communication with Person Represented by Counsel

4.2:100   Comparative Analysis of New York Rule

Primary New York References:
Background References: ABA Model Rule 4.2, Other Jurisdictions
Commentary:
NY Commentary: Simon's N.Y. Code of Prof. Resp. Annot. (1999 ed.) Canons 4 and 7, et seq.

4.2:101      Model Rule Comparison

NY DR 7-104(A)(1) is substantially identical to Model Rule 4.2, except for the substitution of the term "person" for "party."

4.2:102      Model Code Comparison

NY DR 7-104(A)(1) is virtually identical to the Model Code.

4.2:200   Communication with a Represented Person

Primary New York References: DR 7-104(A)(1), EC 7-18
Background References: ABA Model Rule 4.2, Other Jurisdictions
Commentary: ABA/BNA § 71:301, ALI-LGL § 158-162, Wolfram § 11.6.2
NY Commentary: Simon's N.Y. Code of Prof. Resp. Annot. (1999 ed.) Canons 4 and 7, et seq.

Relevant Disciplinary Rules

NY DR 7-104(A)(1) governs communications with people who are represented by a lawyer. It is one of the most strictly enforced rules in the entire Code. NY DR 7-104(A)(1) provides that "[d]uring the course of the representation of a client a lawyer shall not . . . [c]ommunicate or cause another to communicate on the sub ject of the representation with a party the lawyer knows to be represented by a lawyer in that matter unless the lawyer has the prior consent of the lawyer representing such other party or is authorized by law to do so."

Relevant Ethical Considerations

NY EC 7-18 states: "The legal system in its broadest sense functions best when persons in need of legal advice or assistance are represented by their own counsel. For this reason a lawyer should not communicate on the subject matter of the representation of the client with a person the lawyer knows to be represented in the matter by a lawyer, unless pursuant to law or rule of court or unless the lawyer has the consent of the lawyer for that per son..."

Relevant Cases

Purpose of Rule: See Miano v. AC&R Advertising, Inc., 148 F.R.D. 68, 75 (S.D.N.Y. 1993) (DR 7-104(A)(1) protects the integrity of the attorney-client relationship, prevents a lawyer from taking advantage of people without counsel and protects a client from unwittingly disclosing privileged or damaging information); Polycast Technology Corp. v. Uniroyal, Inc., 129 F.R.D. 621 (S.D.N.Y. 1990) (Model Rule 4.2 and NY DR 7-104(A)(1) prevent lawyers from circumventing opposing counsel and using superior skills and training to obtain "unwise statements" from opposing party, pre serves the integrity of the attorney-client relationship by preventing the inadvertent disclosure of privileged information, and facilitates settlements by allowing lawyers skilled in negotiating to conduct discussions).

Admissibility of Information Obtained in Violation of Rule: Nordhauser v. New York City Health & Hospitals Corp., 176 A.D.2d 787, 575 N.Y.S.2d 117, 120 (2d Dept. 1991) (interview conducted in violation of DR 7-104(A)(1) would not be inadmissible solely on that ground).

Disqualification for Violation of Rule: In Papanicolaou v. Chase Manhattan Bank, N.A., 720 F. Supp. 1080 (S.D.N.Y. 1989), while visiting the defendant's law firm to attend a deposition, the plaintiff stopped by the office of a partner in the defendant's law firm to talk about the case. The partner knew that the plaintiff was represented by counsel but nevertheless had a long conversation with him. The plaintiff's lawyer moved to disqualify the defendant's law firm and to suppress the statements made by the plaintiff. The court granted the motion even though the disqualified law firm had erected a Chinese Wall and spent thousands of hours on the case.

Person's Consent Overrides Counsel's Objections: A represented person is empowered to instruct the lawyer to con sent to the person's direct contact with opposing parties. In Dagny Management Corp. v. Oppenheim & Meltzer, 199 A.D.2d 711, 606 N.Y.S.2d 337 (3d Dept. 1993), a lawyer was subject to discharge and forfeiture of his entire fee when the lawyer, seeking to protect his fee, appeared at a real estate closing and insisted, despite the client's contrary instruction, that the opposing party to the transaction conduct all dealings through the lawyer, including the deposit of funds into the lawyer's trust account.

Direct Communications Between Parties Allowed: See Cook v. Moran Atlantic Towing Corp., 76 F.R.D. 481, 484-85 (S.D.N.Y. 1977) (parties to lawsuit have absolute right to settle a case without consent of their attorneys); compare In re Wehringer, 135 A.D.2d 279, 525 N.Y.S.2d 604 (1st Dept.), appeal dismissed, 532 N.Y.S.2d 366 (1988) (finding violation of anti-contact rule where lawyer negotiated directly with opposing represented party).

Relevant Ethics Opinions

Purpose of Rule: Assoc. of the Bar of the City of New York Op. No. 81-29 (1981) (NY DR 7-104(A)(1) "is designed to protect the adverse party's right to effective representation of counsel"); see also Assoc. of the Bar of the City of New York, Formal Op. No. 1991-2, 1991 WL 639876 (April 30, 1991).

Solicitation of Employment as Appellate Counsel: In Nassau County Bar Op. 94-5 (1994), there was no ethics violation where an attorney read in the New York Law Journal that a litigant's case had been dismissed by the trial court and then sent a letter to the litigant soliciting employment to appeal the dismissal. There is no Code provision prohibiting direct mail solicitation of an individual simply be cause the person is already represented by counsel.

Advice on Client's Direct Communications With Opposing Party: Assoc. of the Bar of the City of New York, Formal Op. No. 1991-2, 1991 WL 639876 (April 30, 1991) (lawyer not required to dissuade client-client communication, but may not advise or encourage client to contact other party or advise client with respect to any negotiations that might ensue).

Child Represented by Law Guardian: See NYSBA Comm. on Prof. Ethics, Op. No. 656 1993 WL 555956 (December 22, 1993) (Under NY DR 7-104(A)(1), a law guardian must be considered a child's counsel, therefore the attorney for the parent in a child custody proceeding may not communicate directly with a child for whom a law guardian has been appointed unless the law guardian consents).

Contact with Criminal Complainant: N.Y. County Lawyers' Ass'n Op. 711 (1996): May a lawyer for a criminal defendant contact the complaining witness without the prosecutor's consent to discuss dropping the charges? Yes. "Witnesses in a criminal proceeding, even complaining witnesses, are not represented by the prosecutor . . ." DR 7-104(A)(1) does not prohibit a defense lawyer from con tacting a witness without the prosecutor's consent.

Contact with Defendant's Daughter: Nassau County Bar Op. 95-11 (1995): A lawyer represents a construction company against a father who hired the company to work on his daughter's house. The daughter is not a defendant because only the father is obligated to pay for the work, but the lawyer wants to contact the daughter directly. Under DR 7-104(A)(2), the lawyer may contact the daughter, provided he does not know she is represented by counsel in this matter. However, because she has potentially adverse interests (e.g., a mechanic's lien could be placed on her house), the lawyer may not give her any advice except the advice to secure counsel. Moreover, the lawyer may not state or imply to the daughter that he is "disinterested" in the matter. Rather, he should make clear his role and his interest in the matter. Finally, under DR 7-104(A)(1), the lawyer may not use communications with the daughter as "an attempted indirect communication with the defendant him self," who is represented by counsel.

Contacts Where Reasonable Basis Exists to Believe Plaintiff is No Longer Represented by Counsel: N.Y. County Lawyers' Ass'n Op. 708 (1995): The inquiring attorney represents a defendant in a personal injury action. The plaintiff was initially represented by counsel, but now claims that he cannot locate his attorney and has called the inquiring attorney directly to discuss the case. The inquiring attorney at first refused to talk directly with the plaintiff, and instead wrote a letter to the plaintiff's attorney describing the plaintiff's efforts to contact him and suggesting that he contact the plaintiff. The plaintiff's attorney did not respond to this letter. Moreover, the plaintiff has sent the inquiring attorney a copy of a letter discharging his attorney. However, the court has not yet issued an order allowing the plaintiff's attorney to withdraw. May the inquiring attorney ethically speak with the plaintiff and negotiate a settlement with him? Yes. Because the inquiring attorney knew that plaintiff had previously been represented by counsel in this matter, the inquiring attorney "had an independent duty under DR 7-104(A)(1) to verify that plaintiff was no longer represented. It would have not been sufficient to rely on the word of plaintiff alone." However, as long as the inquiring attorney's efforts to contact the plaintiff's attorney "produce a reasonable basis to believe that plaintiff is no longer represented," the inquiring attorney "may treat plaintiff as a person who is unrepresented by counsel" and "may negotiate a settlement directly with plaintiff."

4.2:210      "Represented Person" (Contact with an Agent or Employee of a Represented Entity)

Relevant Ethics Opinions

Contacts by In-House Attorney with Represented Employee: N.Y. County Lawyer's Ass'n Op. 705 (1995): A lawyer is employed by a corporation as a personnel officer. May the lawyer/personnel officer communicate with an employee of the corporation about suspected wrongdoing if the employee has already hired a lawyer in connection with the possible accusations of wrongdoing, without the consent of the employee's lawyer? Under DR 7-104(A)(1), the answer depends on whether the personnel officer's communications occur "[d]uring the course of representation" of the corporate client. "[T]he fact that an employee is a member of the bar does not automatically mean that the employee is engaged in the legal representation of the employer." On the other hand:

The fact that the employee works in the Personnel Department rather than the Legal Department and has the title Personnel Officer rather than Counsel is not dispositive. What is important is the nature of the employment and not where it is performed or what it is called. If the business executive performs legal services or gives legal advice, the employee is engaged in a representation within the meaning of DR 7-104(A).

Relevant Cases

Employees Covered by Anti-Contact Rule: The New York Court of Appeals has held that NY DR 7-104(A)(1) applies to corporate employees whose acts or omissions in the matter under inquiry are binding on the corporation or imputed to the corporation for purposes of its liability or who are implementing advice of corporate counsel. All other employees may be interviewed informally. Niesig v. Team I, 76 N.Y.2d 363, 559 N.Y.S.2d 493 (1990). In Niesig, the New York Court of Appeals held that the lawyer for plaintiff in a personal injury action against a corporation may privately interview the corporate defendant's employees who witnessed the accident. The Court articulated a test prohibiting communications only with those corporate employees "who have the legal power to bind the corporation in the matter or who are responsible for implementing the advice of the corporation's lawyer, or any member of the organization whose own interests are directly at stake in a representation." 6 N.Y.2d at 374, 559 N.Y.S.2d at 498. Thus, the test adopted by the court "would clearly permit direct access to employees who were merely witnesses to an event for which the corporate employer is sued." 76 N.Y.2d at 375, 559 N.Y.S.2d at 498-99.

4.2:220      Communications "Authorized by Law" -- Law Enforcement Activities

Relevant Cases

Contacts with Parties in Related Matters (Federal Ethics Rule): In Grievance Committee for the Southern District of New York v. Simels, 48 F.3d 640 (2d Cir. 1995), the court held that a criminal defense lawyer did not violate NY DR 7-104(A)(1) by interviewing a witness who was represented by counsel with respect to charges in a related matter. The related matter was not the same matter, and the witness was therefore not a "party" in that matter. The interpretation of NY DR 7-104(A)(1) in federal courts is a matter of federal law, so the court declined to follow New York County Lawyer's Ass'n Comm. on Prof. Ethics, Op. No. 676, 1990 WL 677018 (February 12, 1990) cited by petitioner; see also another case involving interrogation on an unrelated matter, United States v. Masullo, 489 F.2d 217 (2d Cir. 1973) (no anti-contact violation by federal agents who stopped and interrogated defendant on federal narcotics charges after defendant was seen leaving lawyer's office following consultation on pending state narcotics charges).

Government and Prosecutorial Pre-Charge Contacts "Authorized by Law": New York courts have held that the "authorized by law" exception permits certain investigatory and pre-charge contacts with represented criminal suspects. See, e.g. United States v. Hammad, 858 F.2d 834 (2d Cir. 1988): In the course of investigating a suspected arson, an Assistant United States Attorney ("AUSA") sent an under cover informant to talk with a grand jury target whom the AUSA knew to be represented by counsel. The informant told the target that he (the informant) had been served with a subpoena seeking sensitive documents. When the suspect asked to see the subpoena, the informant obtained a phony subpoena from the AUSA, complete with the court's official stamp. The defendant eventually learned what happened and moved to suppress the evidence obtained by the informant. The court held that "the use of informants by government prosecutors in a pre-indictment, non-custodial situation . . . will generally fall within the 'authorized by law' exception to DR 7-104(A)(1) . . . ." In this instance, however, the use of a fake subpoena amounted to "egregious misconduct," so the court remanded to determine whether the evidence ought to be suppressed. See also United States v. Schwimmer, 882 F.2d 22 (2d Cir. 1989), cert. denied, 493 U.S. 1071 (1990) (prosecutor's lawful questioning of convicted criminal defendant before grand jury and outside presence of defendant's counsel was "authorized by law" and did not violate anti-contact rule); compare United States v. Pinto, 850 F.2d 927 (2d Cir.), cert. denied, 488 U.S. 867 (1988) (anti-contact rule applied when prosecutor interviewed represented witness who was also potential defendant); United States v. Scozzafava, 833 F. Supp. 203 (W.D.N.Y. 1993) (holding anti-contact provision applies to federal prosecutors, but denying suppression when prosecutor's proposal to wire informant to record conversations with represented target of criminal investigation was not part of deliberate effort to interfere with defense counsel's ability to advise defendant).

4.2:230      Communications "Authorized by Law" -- Other

Relevant Cases

FELA Claims: While most of the New York decisions concerning communications "authorized by law" arise in the context of criminal investigations, the issue has also arisen in the context of the interview of employees in connection with FELA claims. Notably, in United Transp. Union v. Metro-North Commuter R.R., No. 94 Civ. 2979 (RWS), 1995 WL 634906 (S.D.N.Y. Oct. 30, 1995), the court held that the FELA provision voiding any rule or regulation intended to prevent employees of common carriers from voluntarily furnishing information to interested persons about facts incident to the death or injury of an employee takes precedence over the anti-contact rule.

Class Actions: Members of a class become subject to the anti-contact rule once the class is certified. See Tedesco v. Mishkin, 629 F. Supp. 1474 (S.D.N.Y. 1986).

4.2:240      Communication with a Represented Government Agency or Officer

Relevant Ethics Opinions

Contacts with Officers of Governmental Agency: NYSBA Comm. on Prof. Ethics, Op. No. 652, 1993 WL 555952 (August 27, 1992) (lawyer for private party may contact any officer in represented governmental agency other than employee with power to bind agency).

Interview of Agency Employees: Assoc. of the Bar of the City of New York, Formal Op. No. 1991-4, 1991 WL 639878 (August 16, 1991) (lawyer representing private litigant against government agency may interview agency employees who were mere witnesses, outside presence of and without notice to agency's lawyer, but interviews with supervisory employees are subject to anti-contact rule, except to extent that contact with agency head is protected by con stitutional right to petition for redress of grievances).

Relevant Cases

Interview of Government Employees Permitted: New York decisions have held that NY DR 7-104(A)(1) supports broad access to government employees. See, e.g., New York State Ass'n for Retarded Children v. Carey, 706 F.2d 956 (2d Cir.), cert. denied, 464 U.S. 915 (1983) (balance struck in favor of allowing plaintiffs' counsel to interview state mental institution's employees outside presence of defendant's counsel); Frey v. Dep't of Health and Human Services, 106 F.R.D. 32 (E.D.N.Y. 1985) (since government, unlike other corporate parties, has a duty to advance the public's interest in achieving justice, an obligation that outweighs its interest in prevailing in a law suit, there is a "stronger reason to construe term 'party' narrowly where defendant is government employer"); Fusco v. City of Albany, 134 Misc.2d 98, 509 N.Y.S.2d 763 (Sup. Ct. Albany County 1986) (plaintiff's agent had right to inspect Dep't of Public Work's records concerning notice of sidewalk defects under Freedom of Information Act despite pendency of litigation)

4.2:250      Communication with a Confidential Agent of Non-Client

[The discussion of this topic has not yet been written.]

4.3   Rule 4.3 Dealing with Unrepresented Person

4.3:100   Comparative Analysis of New York Rule

Primary New York References: DR 7-104(A)
Background References: ABA Model Rule 4.3, Other Jurisdictions
Commentary:
NY Commentary: Simon's N.Y. Code of Prof. Resp. Annot. (1999 ed.) Canon 7, et seq.

4.3:101      Model Rule Comparison

The NY Code contains no direct counterpart to Rule 4.3. However, NY DR 7-104(A)(1) provides that a lawyer shall not "[g]ive advice to a person who is not represented by a lawyer, other than the advice to secure counsel . . ." Comment [1] to Model Rule 4.3 (which states that "[d]uring the course of a lawyer's representation of a client, the lawyer should not give advice to an unrepresented person other than the advice to obtain counsel") is almost identical to NY DR 7-104(A)(2).

4.3:102      Model Code Comparison

NY DR 7-104(A)(2) is almost identical to the Model Code.

4.3:200   Dealing with Unrepresented Person

Primary New York References: DR 7-104(A)(2), EC 2-3, 7-18
Background References: ABA Model Rule 4.3, Other Jurisdictions
Commentary: ABA/BNA § 71:501, ALI-LGL § 163, Wolfram § 11.6.3
NY Commentary: Simon's N.Y. Code of Prof. Resp. Annot. (1999 ed.) Canon 7, et seq.

Relevant Disciplinary Rules

NY DR 7-104(A)(2) provides that, during the course of the representation of a client, a lawyer shall not "[g]ive advice to a person who is not represented by a lawyer, other than the advice to secure counsel, if the interests of the person are or have a reasonable possibility of being in conflict with the interests of the lawyer's client."

Relevant Ethical Considerations

EC 2-3 provides that "[w]hether a lawyer acts properly in volunteering in person advice to a non-lawyer to seek legal services depends on the circumstances. The giving of advice that one should take legal action could well be in fulfillment of the duty of the legal profession to assist the public in recognizing legal problems."

EC 7-18 provides, inter alia, "[i]f one is not represented by counsel, a lawyer representing another may have to deal directly with the unrepresented person; in such an in stance, a lawyer should not undertake to give advice to the person who is not represented by a lawyer, except to advise the person to obtain a lawyer."

Relevant Cases

Interview and Request to Sign Authorizations: In W.T. Grant Co. v. Haines, 531 F.2d 671 (2d Cir. 1976), a former employee of the plaintiff corporation moved to dismiss the complaint against him or disqualify the corporation’s attorneys on grounds that the attorneys had interviewed him improperly when he was not represented by counsel, and had advised him to sign authorizations allowing the company to examine his taxes, credit cards, and other financial documents. The court held that the “advice” prohibited by NY DR 7-104(A)(2) “seems to encompass advice as to the law, which was not present here.” In any event, even if the attorneys had violated NY DR 7-104(A)(2), that would not justify the severe penalty of dismissal. Nor would a violation of NY DR 7-104(A)(2) automatically result in disqualification of counsel. Cf. United States v. Dennis, 843 F.2d 652 (2d Cir. 1988) (appropriate sanction for lawyer who gave advice to client's co-defendant in criminal case, absent "serious prejudice or taint," should be disciplinary action rather than limitation of cross-examination).

Rule Violation Found: Courts found a violation of NY DR 7-104(A)(2) in the following cases: In re Michelman, 202 A.D.2d 87, 616 N.Y.S.2d 409 (2d Dept. 1994) (misleading biological mother when representing adoptive parents); Brown v. Peninsula Hospital Center, 64 A.D.2d 685, 407 N.Y.S.2d 586, 587 (2d Dept. 1978) (lawyer for hospital failed to inform doctor whom client-hospital produced as its representative at deposition that doctor had potential conflict of interest with hospital).

Cross References

NY DR 7-104(A)(2)) is also discussed in Section 3.4:700 "Advising Witness Not to Speak to Opposing Parties."

4.4   Rule 4.4 Respect for Rights of Third Persons

4.4:100   Comparative Analysis of New York Rule

Primary New York References: DR 7-102(A)(1), DR 2-110(B), DR 7-108(D), EC 7-10, 7-29, 7-37
Background References: ABA Model Rule 4.4, Other Jurisdictions
Commentary:
NY Commentary: Simon's N.Y. Code of Prof. Resp. Annot. (1999 ed.) Canon 7, et seq.

4.4:101      Model Rule Comparison

The NY Code Model has no direct counterpart to Rule 4.4. However, several NY Rules address the need to avoid the employment of legal tactics that have no purpose other than to harm third persons.

For example, NY DR 2-110(B) requires a lawyer to withdraw from the representation of a client before a tribunal if the lawyer knows or it is obvious that the client is bringing the action, or making a defense or position "merely for the purpose of harassing or injuring any person." NY DR 7-102(A)(1) prohibits a lawyer from taking any action in litigation that would serve "merely" to "harass or maliciously injure" another person and is more fully discussed in Section 3.2:100-300. And NY DR 7-102(A)(1) states that a lawyer does not fail to zealously represent a client by, inter alia, "avoiding offensive tactics, or by treating with courtesy and consideration all persons involved in the legal process."

On the treatment of jurors and their families, NY DR 7-108(D) provides that "[a]fter discharge of the jury . . . the lawyer shall not ask questions or make comments to a member of that jury that are calculated merely to harass or embarrass the juror . . ." and NY DR 7-108(E) similarly provides that a lawyer "shall not conduct . . . a vexatious or harassing investigation of either a member of the venire or a juror." NY DR 7-108(D) and (E) are discussed more fully in Section 3.5:220 "Improperly Influencing a Juror."

With respect to the treatment of witnesses, NY DR 7-106(C)(2) provides that a lawyer shall not "[a]sk any question . . . that is intended to degrade a witness or other person" and is discussed more fully in Sections 3.4:500 "Fairness in Pretrial Practice" and 3.4:600 "Improper Trial Tactics."

Relevant Ethical Considerations

Several Ethical Considerations address the need to respect the rights of third parties:

NY EC 7-10 notes that an attorney's duty to represent his client with zeal does not negate his "concurrent obligations to treat with consideration all persons involved in the legal process and to avoid the infliction of needless harm."

NY EC 7-29, concerning the need to protect jurors from extraneous influences, provides that a lawyer may communicate with jurors after a trial "so long as the lawyer refrains from asking questions or making comments that tend to harass or embarrass the juror . . . ."

NY EC 7-37 provides that "[a] lawyer should not make unfair or derogatory personal reference to opposing counsel."

4.4:102      Model Code Comparison

NY DR 7-106(C)(2), NY DR 7-102(A)(1), and NY DR 7-108(D) and (E) are identical to the Model Code.

4.4:200   Disregard of Rights or Interests of Third Persons

Primary New York References: DR 7-102(A)(1), DR 7-106(C), DR 7-105(A), EC 7-21
Background References: ABA Model Rule 4.4, Other Jurisdictions
Commentary: ABA/BNA § 71:101, ALI-LGL §§ 163, 166, 167, Wolfram § 12.4.4
NY Commentary: Simon's N.Y. Code of Prof. Resp. Annot. (1999 ed.) Canon 7, et seq.

Relevant Cases

Offensive Remarks to Opposing Counsel: In Principe v. Assay Partners, 154 Misc.2d 702, 586 N.Y.S.2d 182 (Sup. Ct. N.Y. County 1992), a lawyer was sanctioned for making sexist remarks to female opposing counsel at a deposition which included, "Be quiet, little girl," "Go away, little girl," "I don't have to talk to you, little lady." The court blended together NY DR 7-102(A)(1), a local court rule permitting sanctions for behavior "undertaken primarily . . . to harass or maliciously injure another," and the Rule 11 ban on pleadings "interposed for any improper purpose" in choosing a "reasonable attorney" standard to condemn the lawyer's behavior.

Cross-Examining a Truthful Witness; Fostering Falsity: The NY Code does not specifically address the cross-examination of a truthful witness. However, NY Rules which may bear on this subject include: NY DR 7-106(C)(1) (prohibiting allusions to matters the lawyer has "no reasonable basis to believe is relevant . . . or . . . support[able] by admissible evidence"); NY DR 7-106(C)(2) (prohibiting the lawyer from asking questions the lawyer "has no reasonable basis to believe is relevant to the case and that is intended to degrade a witness or other person").

4.4:210      Cross-Examining a Truthful Witness; Fostering Falsity

[The discussion of this topic has not yet been written.]

4.4:220      Threatening Prosecution [see 8.4:900]

Relevant Disciplinary Rules

NY DR 7-105(A) provides that “[a] lawyer shall not present, participate in presenting, or threaten to present criminal charges solely to obtain an advantage in a civil matter.” Significantly, the Model Rules do not proscribe the threat of criminal prosecution to gain advantage in a civil matter.

Relevant Ethical Considerations

See EC 7-21 [Section 4.4:101, supra]

Relevant Cases

Improper Threats: Matter of Glavin, 107 A.D.2d 1006, 484 N.Y.S. 2d 933 (3rd Dep't 1985) (attorney violated NY DR 7-105 and EC 7-21 by letter accusing client's workman of "con[ning client] out of $1000" and threatening workman "[you] will return the money or go to jail," "you will be arrested" but "[i]f you return [the] money . . . I will tell the City not to punish you."); People v. Harper, 75 N.Y.2d 313, 552 N.Y.S.2d 900 (1990) (under NY DR 7-105, "it is improper to use the threat of criminal prosecution as a means of extracting money in a civil suit.") See also In re Beachboard, 263 N.Y.S. 492 (1st Dep't 1993) (attorney censured for "scurrilous" letter to opposing counsel threatening that unless a "small amount of money was immediately paid [his client] would present the matter to the district attorney upon a charge of larceny and embezzlement. . ."); In re Gelman, 230 A.D. 524, 245 N.Y.S. 416 (1st Dept. 1930) (attorney for plaintiffs in personal injury case resulting from collision between plaintiff’s car and defendant’s taxicab wrote to the defendant, “If I am put to the trouble of proceeding against you personally, I will be compelled to institute criminal proceedings against you for failing to cover your taxicab by proper insurance…”; attorney was “severely censured.”)

Attorney's Dual Role as Prosecutor and Civil Plaintiff's Counsel: Read v. Sacco, 49 A.D.2d 471, 375 N.Y.S.2d 371 (2d Dept. 1975) (the court affirmed the grant of summary judgment to a civil plaintiff in an assault case following defendant's criminal conviction for same amount, even though plaintiff's private attorney had also handled the successful prosecution of the criminal assault case. While DR 7-105 prohibits private attorneys from using criminal proceedings to gain an advantage in a civil action, the shortage of district attorneys in the county left plaintiff no choice but to hire a private attorney to prosecute the criminal charges).

Prosecutor's Settlement of Civil and Criminal Charges: Town of Newton v. Rumery, 480 U.S. 386 (1987): Under 42 U.S.C. § 1983, a prosecutor may enter into a settlement agreement in a civil case in which the town agrees to drop criminal charges against a citizen in exchange for the citizen's agreement to drop a civil case against the town arising out of an arrest.

Relevant Ethics Opinions

Discovery of Opposing Party's Unrelated Illegal Conduct During Deposition: In Nassau County Bar Op. 94-20 (1994), an attorney represented a defendant in a personal injury action. At plaintiff’s deposition, plaintiff testified that he had entered the United States illegally, remained in the United States illegally, and earned money without paying income tax. The attorney is not obligated to report this information to anyone because there has been no fraud on a tribunal. Moreover, under NY DR 7-105, the attorney may not report or threaten to report the plaintiff’s past illegal conduct “solely to obtain an advantage in a civil matter.”

Private Settlement of Both Potential Civil and Criminal Charges: N.Y. City Bar Op. 1995-13 (1995): An attorney represents a client against whom both a civil suit and criminal charges might be brought. If the client offers to settle the civil claim on the condition that the adversary agree not to report the criminal matter, the attorney may ethically negotiate such a settlement without violating DR 7-105. (However, DR 7-109(A) prohibits the defendant's attorney from suppressing any evidence that the lawyer or the client has a legal obligation to reveal or produce.)

Relevant ABA Ethics Opinions:

Threats to File Disciplinary Proceedings: ABA Formal Op. 94-383 (1994): The ABA Model Rules of Professional Conduct deliberately contain no equivalent to DR 7-105, but it is nevertheless unethical to threaten to file professional disciplinary charges to gain an advantage in a civil matter if the lawyer making the threat is obligated under Rule 8.3(a) to file the charges in any event. It is also unethical to threaten to file disciplinary charges to coerce a settlement in a civil case if the charges are unrelated to the case in which the threat is made or concern the same conduct, because such threats would appear to constitute criminal extortion.

Reporting Defendant's Illegal Conduct: ABA Informal Op. 1484 (1981): A law firm pursuing civil claims on behalf of a client may report a defendant's illegal conduct to prose cutors. A violation of DR 7-105 occurs only where a lawyer threatens criminal prosecution or brings criminal charges to gain an advantage in "an essentially private dispute." Where criminal conduct is ongoing, the public interest in learning about the conduct is especially strong. Unless a lawyer's conduct would amount to "misuse of the criminal process to coerce an adjustment of an essentially civil claim," there is no violation of DR 7-105. Typically, where a violation of DR 7-105(A) is found, the criminal charges are of questionable validity or prosecutorial misconduct is involved.

Threat of Criminal Prosecution to Collect Debt: ABA Informal OP. 1427 (1978): A lawyer represented a publisher against a person who sold advertising but failed to remit the proceeds to the publisher. The lawyer wrote a letter to the person saying that his use of the funds constituted embezzlement and the publisher "may well have to consider resort to criminal process." A follow-up letter stated that the lawyer had "spoken to a member of a law enforcement agency (so far on an informal basis) and it appears that there is good cause for possible criminal action." These letters violated DR 7-105. They threatened to present criminal charges solely to collect a civil debt. It does not matter whether the lawyer is correct that the debtor did violate an applicable criminal law.