100803 NYEO, ETH 768

Docket Nº:ETH 768
Case Date:October 08, 2003
Court:New York
ETH 768
Ethics Opinion 768
New York Ethics Opinion
New York State Bar Association Committee On Professional Ethics
October 8, 2003
         (3-03)          Topic: Definition of "communication" with represented parties; knowledge of adverse party's representation by counsel; statement of client position as legal advice.          Digest: A lawyer representing a government agency in a civil matter may be present and counsel the lawyer's own client at a meeting with a person known to be represented in that matter without opposing counsel's consent, provided that the lawyer gives reasonable advance notice to opposing counsel of the lawyer's intention to attend and does not communicate with the opposing party. If a lawyer has a reasonable basis to believe that a person may be represented by counsel in a matter, the lawyer has a duty to inquire further. If a lawyer does not know that a person is represented by counsel in connection with a matter, and participates in a communication with such an unrepresented party, a lawyer's statement of a client's legal position in the matter does not constitute impermissible legal advice to an unrepresented person.          Code: EC 7-18; DR 1-105(A), (B); DR 7-104(A), (B).          QUESTIONS           1. May a lawyer representing a government agency attend meetings with non-lawyer representatives of a counter-party to a government contract he or she "knows" to be represented by counsel?            2. May the government lawyer who attends such a meeting advise the client representative during the meeting without consent of opposing counsel?           3. Without consent of opposing counsel, must the lawyer who attends the meeting remain silent during the course of the meeting or may the lawyer at least communicate the government's agency's legal position concerning the matter?            4. When a government lawyer attends such a meeting or receives inquiries from counter-parties regarding agency filing requirements, how does the lawyer determine whether he or she "knows" the counter-party is represented for purposes of DR 7-104?            5. If the government lawyer has determined that he or she does not "know" that the counter-party is represented in connection with the subject of a civil matter, does the lawyer's (a) statement to counter-parties of the government's legal position and/or (b) response to inquiries from counter-parties regarding agency filing requirements constitute impermissible legal advice to an unrepresented party?          OPINION          Background           A lawyer is employed by a government agency to advise the agency on, among other things, its dealings with government contractors. This employment gives rise to two common circumstances in which the lawyer is asked to have direct contact with non-lawyer representatives of government contractors that employ lawyers in the ordinary course of conducting their business.           In the first of these circumstances, the government agency asks the lawyer to accompany the agency's contracting officers to meetings with representatives of government contractors. These counter-party representatives have the ability to bind their principal or to make statements that may properly be imputed to the principal. The meetings usually involve the exchange of information, rather than negotiation of the contracts, but the encounters may also concern resolution of contractual issues on which the parties disagree and discussion of contractual disputes in which the potential for litigation inheres. Normally, if counsel represents the government contractor in connection with the contractual issue, the contractor's counsel attends the meeting. On other occasions, however, the government contractor, though known to employ counsel, does not bring counsel to the meeting unless the prospect of litigation is likely. The government agency invites its own counsel to these meetings to facilitate the lawyer's advice to the agency (by enabling the lawyer to fully understand the contractor's issues) and/or to have the lawyer set forth the agency's legal position on the matter to the government contractor.            In the second recurring circumstance, the government lawyer receives questions from non-lawyer representatives of government contractors concerning the government agency's requirements for taking certain actions under the contracts, most typically about the kind of documentation the contractor must file with the agency to provide a legal basis for the agency's decision to approve or disapprove the proposed action. Ordinarily, the answers to these questions are clear - that is, the agency's legal position leaves no room for dispute about whether a document must be filed and what the document must say. A failure to file the documentation is certain to produce an unfavorable decision from the agency and there is no assurance that the agency will reach a favorable decision even if the contractor timely and properly completes and files the required documentation. ...

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