Can a lawyer depose a person who is a named defendant but does not yet know about the lawsuit, without telling them the lawyer's client is adverse to them?

Plain-English summary

A lawyer filed suit naming two defendants, Party A (served) and Party B (not served and unaware of the suit). The client asked the lawyer to depose Party B before serving the complaint, with the client bringing Party B to the lawyer's office, on the theory that Party B, unaware of the litigation, might testify to his own disadvantage. The lawyer asked whether this is permissible.

The committee frames a two-step analysis under Rule 4.3 (communicating with an unrepresented person): whether the communication could create a misunderstanding, and whether the deponent's interests are adverse to the client. Rule 4.3 bars a lawyer from stating or implying he is disinterested, requires correcting any misunderstanding of his role, and bars giving legal advice to an unrepresented person whose interests conflict with the client's, other than the advice to secure counsel. Comment [1] notes the lawyer typically must identify his client and explain that the client's interests are opposed. So the lawyer must tell Party B that he represents the client, that Party B's interests are adverse, and that Party B should obtain independent counsel. The committee notes that if Party B turns out to be represented, Rule 4.2 would instead bar contact without opposing counsel's consent.

The committee then addresses the deception the client proposed: luring Party B to the office under the false pretense that he is helping the client, when in fact the lawyer is building a case against him. Conducting the deposition under that pretense, without the required disclosures, would involve deceit and misrepresentation barred by Rule 8.4(c), and would violate Rule 8.4(a) by having the lawyer assist the client's attempt to violate the rules. Under Rule 1.4(a)(5) and Rule 1.2(d), the lawyer must advise the client that the proposed conduct, without disclosure, violates the rules and that the lawyer will disclose his role and advise Party B to retain counsel. If the client insists on the fraudulent course, the lawyer must withdraw under Rule 1.16(c)(13) (and the committee cites mandatory-withdrawal Rule 1.16(b)(1)). The committee does not opine on whether the testimony would be admissible, a question of law.

In practice

The opinion holds that, under the New York rules as they stood in 2013, a lawyer deposing an unrepresented adverse party must disclose that he is not neutral, that the party's interests are adverse, and that the party should obtain counsel, and may not proceed under a false pretense. The committee identifies the controlling rules as Rule 4.3 (the disclosure duties to an unrepresented person) and Rule 8.4(c) (the bar on deceit). It directs that the lawyer counsel the client about these limits under Rules 1.4(a)(5) and 1.2(d) and withdraw under Rule 1.16(c)(13) if the client insists on the deceptive plan.

Common questions

Q: Can I depose someone who does not yet know they are a defendant?

A: Not without disclosure. Per paragraphs 12 and 26, Rule 4.3 requires telling the unrepresented person that you represent an adverse client and advising them to get counsel; doing it secretly is barred.

Q: What must I tell an unrepresented adverse witness before questioning them?

A: That you are not disinterested, that your client's interests are adverse to theirs, and that they should secure independent counsel (paragraph 12 and Rule 4.3). You may give only non-controvertible information needed to convey the need for counsel (paragraph 13).

Q: My client wants me to bring the witness in under a false pretense. Can I?

A: No. Per paragraphs 17 to 19, deposing under a false pretense involves deceit and misrepresentation barred by Rule 8.4(c) and would assist a rule violation under Rule 8.4(a).

Q: What do I do if the client insists on the deceptive deposition?

A: Counsel the client that it violates the rules (Rules 1.4(a)(5), 1.2(d)) and, if the client persists, withdraw under Rule 1.16(c)(13) (paragraphs 24 to 25).

Background and rules framework

The opinion interprets Rule 4.3 (Model Rule 4.3, dealing with an unrepresented person) and Rule 4.2 (Model Rule 4.2, the no-contact rule) against the misconduct rule Rule 8.4(a), (c), (d) (Model Rule 8.4), the limits on counseling or assisting fraud in Rule 1.2(d) (Model Rule 1.2(d)), the client-communication duty in Rule 1.4(a)(5), and the withdrawal rule Rule 1.16(b)(1) and (c)(13) (Model Rule 1.16). The fraud definition is drawn from Rule 1.0(i).

Citations and references

Rules of Professional Conduct:

• MR 4.3 / NY Rule 4.3 (dealing with an unrepresented person)
• MR 4.2 / NY Rule 4.2 (communication with a represented person)
• MR 8.4 / NY Rule 8.4(a), (c), (d) (assisting a violation; deceit; conduct prejudicial to justice)
• MR 1.2 / NY Rule 1.2(d) (no assisting illegal or fraudulent conduct)
• NY Rule 1.4(a)(5) (advising the client of limits on the lawyer's conduct)
• MR 1.16 / NY Rule 1.16(b)(1), (c)(13) (mandatory and permissive withdrawal)

Other opinions cited:

• N.Y. State 728 (2000); N.Y. State 477 (1977); N.Y. City Bar Op. 2009-02: what a lawyer may communicate to an unrepresented party about the need for counsel.

See also

• NY State Bar Op. 959: Contacting an adverse party whose lawyer withdrew
• NY State Bar Op. 1080: Contacting a public official represented by counsel
• NY State Bar Op. 1047: Government lawyer interviewing a represented person's clients

Source

• Landing page: https://nysba.org/ethics-opinion-956/