Can a lawyer interview an unrepresented adverse witness and take a statement that helps the lawyer's client?

Plain-English summary

The committee addressed a lawyer representing a putative father in a paternity and support proceeding brought by the Commissioner of Social Services. The mother of the child was not represented by counsel and was apparently willing to give the lawyer a written statement exonerating his client. The committee was asked whether the lawyer could communicate with her to obtain that statement, and concluded that he could.

The committee grounded its analysis in EC 7-18 and DR 7-104. It explained that the Code draws a sharp line between persons who are represented by counsel and persons who are not. Where a person is represented, DR 7-104(A)(1) imposes an absolute bar on communicating about the matter without the other lawyer's consent, and it makes no difference whether the communication is advice or a simple question. Where a person is not represented, the lawyer may communicate on any subject, but DR 7-104(A)(2) limits the lawyer to one piece of advice when the person's interests conflict with the client's, namely the advice to secure counsel.

The committee stressed the distinction between giving legal advice and obtaining information. Where the lawyer does no more than gather information, even information harmful to the informant, there is no impropriety so long as the informant is unrepresented, the lawyer remains candid, and the lawyer does not misrepresent his status (DR 1-102(A)(4)). If the unrepresented person, whose interests are adverse, refuses to speak until she obtains legal advice, the lawyer must desist. The committee tied this back to Canon 7's command that a lawyer represent a client zealously within the bounds of the law, noting that gathering information and marshaling evidence are an inseparable part of that duty (Canons 6 and 7).

The committee then characterized the mother's status. Because the proceeding was brought in the Commissioner's name and the mother lacked control over it, she could not be deemed a party and the Commissioner's attorney could not be viewed as her counsel; at most she was an unrepresented witness with interests adverse to the respondent. On those facts, the committee held it would not be improper for the lawyer to obtain her statement, provided he refrained from offering her any advice and his communications with her were in all respects completely candid.

Currency note

This opinion was issued in 1977, before New York replaced the Code of Professional Responsibility with the Rules of Professional Conduct in 2009 (dealing with an unrepresented person is now governed by Rule 4.3, communication with represented persons by Rule 4.2, and candor by Rule 4.1 and Rule 8.4). Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Can a lawyer contact an unrepresented person whose interests are adverse to the client?

A: Under this opinion, yes. The committee held that DR 7-104 bars only communications with represented persons; an unrepresented person may be contacted on any subject, subject to the advice limit below.

Q: What is the lawyer allowed to say to that person?

A: The committee held the lawyer may gather information but, where the person's interests conflict with the client's, the only advice he may give is to secure counsel (DR 7-104(A)(2)).

Q: Does it matter that the statement could hurt the person giving it?

A: No. The committee held that obtaining information harmful to an unrepresented informant is not improper, as long as the lawyer is candid, does not misrepresent his status, and gives no legal advice. If the person refuses to talk without first getting advice, the lawyer must desist.

Background and rules framework

The opinion applies EC 7-18 and DR 7-104(A) (the represented/unrepresented line and the advice-to-secure-counsel limit), DR 1-102(A)(4) (no misrepresentation), and Canons 6 and 7 (competence and zealous representation within the bounds of law). The current Model Rule analogues are Rule 4.3 (dealing with an unrepresented person, who may be advised to secure counsel) and Rule 4.2 (communication with a represented person), with candor governed by Rule 4.1 and Rule 8.4(c).

Citations and references

Rules of Professional Conduct:

• MR 4.3 (dealing with unrepresented person)
• MR 4.1 (truthfulness in statements to others)
• NY Canon 6, Canon 7; EC 7-18; DR 1-102(A)(4), DR 7-104(A)(1), DR 7-104(A)(2)

Other opinions cited:

• N.Y. State 402 (1975); N.Y. State 245 (1972): obtaining information from an unrepresented person
• ABA Informal 581 (1962): candor as to the lawyer's status

See also

• NY State Bar Op. 477: Advising an adverse party to get counsel
• NY State Bar Op. 478: Contacting an unrepresented adverse party in a divorce
• NY State Bar Op. 1124: Communicating with opposing counsel and party

Source

• Landing page: https://nysba.org/opinion-463/