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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