Can a lawyer interview an expert witness retained by the opposing party without the consent of opposing counsel?

Plain-English summary

The committee was asked whether an attorney may communicate with an expert witness retained by an adversary without opposing counsel's knowledge or consent. It started with DR 7-104(A)(1), which bars a lawyer from communicating about the subject of the representation with a party the lawyer knows to be represented by counsel, absent that counsel's consent or legal authorization. The rule is designed to insulate represented parties from direct contact with an opposing attorney (quoting ABA Informal Op. 1496).

The committee framed the question as whether a retained expert witness in an adversarial context is "a party represented by a lawyer" within DR 7-104(A)(1). Citing the ABA's view that a lawyer may generally interview witnesses for the opposing side without opposing counsel's consent unless the person is a party (ABA Informal Op. 1410), and its own N.Y. State 245, the committee found no ethical rule or policy that would treat a non-party retained expert differently from any other non-party witness. It therefore concluded that such communication is ethically permissible, in accord with Alaska Op. 84-8 and Wisconsin Op. 83-13.

The committee added an important limit: while ex parte contact with the adversary's retained expert is permissible, it would be unethical for the lawyer to attempt to discover, through that contact, matters protected by an evidentiary or work-product privilege (DR 1-102(A)(5)). It also flagged, without deciding, that CPLR 3101(d)(1) and Federal Rule of Civil Procedure 26(b)(4) govern the scope of expert discovery, and noted Campbell Industries v. M/V Gemini found such ex parte contact violated Rule 26(b)(4); because those are questions of law and court-rule compliance, the committee expressed no opinion on them. The question was answered in the affirmative.

Currency note

This opinion was issued in 1986, before New York replaced the Code of Professional Responsibility with the Rules of Professional Conduct in 2009 (the no-contact rule now appears at Rule 4.2 and fairness to opposing parties and counsel at Rule 3.4). The opinion also expressly left the governing discovery rules (CPLR 3101(d) and FRCP 26(b)(4)) to be applied as law, and those rules have since been amended. 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 Treat this page as historical context, not current guidance.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 the other side's expert witness without permission?

A: Yes, on the ethics rule. The committee held a retained expert is a non-party witness, not a "party" under DR 7-104(A)(1), so ex parte communication is ethically permissible without opposing counsel's consent.

Q: Are there limits on what the lawyer can ask the expert?

A: Yes. The committee held the lawyer may not use the contact to obtain matters protected by an evidentiary or work-product privilege, citing DR 1-102(A)(5).

Q: Does this opinion resolve whether discovery rules allow the contact?

A: No. The committee expressly declined to opine on CPLR 3101(d)(1), FRCP 26(b)(4), or court rules, noting a federal case had found such contact violated Rule 26(b)(4); those are questions of law beyond its authority.

Background and rules framework

The opinion interpreted DR 7-104(A)(1), the rule against communicating with a represented party, and DR 1-102(A)(5) on conduct prejudicial to the administration of justice. The closest current Model Rule analogues are Rule 4.2 (communication with a person represented by counsel) and Rule 3.4 (fairness to opposing party and counsel, including obstruction of access to evidence).

Citations and references

Rules of Professional Conduct:

• MR 4.2 (communication with a person represented by counsel)
• MR 3.4 (fairness to opposing party and counsel)
• NY DR 7-104(A)(1); DR 1-102(A)(5)

Statutes and rules:

• N.Y. CPLR 3101(d)(1); Fed. R. Civ. P. 26(b)(4): governing the scope of expert discovery (the committee did not opine on their application)

Cases:

• Campbell Industries v. M/V Gemini, 619 F.2d 24 (9th Cir. 1980): ex parte contact with an adversary's expert violated Rule 26(b)(4)

Other opinions cited:

• ABA Informal Op. 1410 (1978); ABA Informal Op. 1496 (1983); N.Y. State 245 (1972): a lawyer may interview non-party witnesses for the opposing side without opposing counsel's consent

See also

• NY State Bar Op. 607: Communicating with an adverse party
• NY State Bar Op. 652: Contacting a represented government entity's employees
• NY State Bar Op. 1047: A government lawyer interviewing a represented person's clients

Source

• Landing page: https://nysba.org/opinion-577/