Opinion 463NEW YORK STATE BAR ASSOCIATION Committee on Professional Ethics
Opinion #463 – 04/11/1977 (124-76)
adverse witnesses, children, communication, opposing party, paternity proceeding, witnesses
Topic: Communications with person having adverse interests
Digest: Lawyer for respondent in paternity proceeding may obtain statement from mother of illegitimate child under certain circumstances
Code: Canons 6 and 7; EC 7-18; DR 1-102(A)(4); 7-104 (A)(1) and (2)
A lawyer represents the respondent putative father in proceedings instituted by the Commissioner of Social Services to establish paternity and obtain support. Such proceedings are brought in the name of the Commissioner to defray the cost of pubic assistance accorded the child and its mother and can be maintained notwithstanding the fact that the child’s mother refuses to bring them in her own name or has asked that such proceedings not be instituted. Regardless of the outcome of these proceedings, the mother and her child will continue to receive public assistance. The lawyer has reason to believe that he can obtain a written statement from the mother exonerating his client. The mother is not represented by counsel and is apparently willing to give this statement to the lawyer. Under these circumstances, may the lawyer communicate with the mother for the purpose of obtaining her statement?
The provisions of the Code of Professional Responsibility most germane to this inquiry are to be found at EC 7-18 and DR 7-104. EC7-18 explains:”The legal system in its broadest sense functions best when persons in need of legal advice or assistance are represented by their own counsel. For this reason a lawyer should not communicate on the subject matter of the representation of his client with a person he knows to be represented in the matter by a lawyer, unless pursuant to law or rule of court or unless he has the consent of the lawyer for that person. If one is not represented by counsel, a lawyer representing another may have to deal directly with the unrepresented person; in such instance, a lawyer should not undertake to give advice to the person who is attempting to represent himself, except that he may advise him to obtain a lawyer.”Consistent with the broad principles announced at EC 7-18, DR 7-104 provides:”A. During the course of his representation of a client a lawyer shall not:”1. Communicate or cause another to communicate on the subject of the representation with a party he knows to be represented by a lawyer in that matter unless he has the prior consent of the lawyer representing such other party or is authorized by law to do so.”2. Give advice to a person who is not represented by a lawyer, other than the advice to secure counsel, if the interests of such person are or have a reasonable possibility of being in conflict with the interests of his client.”The Code thus distinguishes communications with persons represented by counsel from those with persons who are not. There a person is represented by counsel, there is an absolute proscription which serves to bar any and all communications relating to the matter for which that person has retained counsel. In such instances, whether the communication amounts to the giving of legal advice or consists of a simple question is irrelevant. If a person is represented by counsel, absent such counsel’s consent, the ethics of our profession require that no lawyer other than his own communicate with him on the subject of the representation and all forms of communication are proscribed.Where a person is not represented by counsel, however, a lawyer is free to communicate with him on any and all subjects and may, indeed, offer unsolicited legal advice, provided the interests of such person are not potentially in conflict with those of the lawyer or his client. If such potential conflict exists, the only advice which the lawyer is permitted to offer that person is to secure other counsel. In this last connection, it is especially important to recognize the distinction between the giving of legal advice and the obtaining of information. Where the lawyer does no more than obtain information, even though that information may be harmful to his informant, if the informant is not represented by counsel, there is no impropriety. N.Y. State 402 (1975); N. Y State 245 (1972). Indeed, if the informant is not represented by counsel, there would appear to be no impropriety involved in obtaining such information even where the interests of the lawyer’s client are adverse to those of the informant, as long as nothing which could arguably amount to the giving of legal advice is advanced by the lawyer in the course of obtaining that information. To be sure, in obtaining such information, the lawyer must at all times act with candor and should not misrepresent his status. DR 1-102(A)(4); ABA Inf. 581 (1962). Where the lawyer’s intended informant refuses to divulge information unless and until he obtains legal advice, if the informant’s interests are either presently or potentially adverse to those of the lawyer or his client, the lawyer must desist.Throughout, it should be remembered that the proscriptive provisions of EC 7-18 and DR 7-104 are intended to elaborate the fundamental principle announced by Canon 7, that “a lawyer should represent a client zealously within the bounds of the law.” The draftsmen of the Code thereby implicitly acknowledged that, in litigated matters, traditionally a lawyer serves his client, not only as advocate and advisor, but also as an investigator of the facts relevant to his client’s cause. The gathering of information and the marshalling of evidence are an inseparable part of the lawyer’s duty to serve his client with zeal and competence. See, Canons 6 and 7; also see, N.Y. State 402, supra. Mindful of this relationship, we are well advised to apply the proscriptive provisions of EC 7-18 and DR 7-104 cautiously and only to the extent necessary to accomplish the relatively limited ends which they are intended to serve.Given the evident nature of the proceedings brought by the Commissioner of Social Services, the mother could hardly be deemed a party. At most, her status in the proceedings would be that of a witness. Although the mother’s interests may in some sense be represented by the Commissioner, her lack of control over the proceedings precludes any possibility of the Commissioner’s attorney being viewed as her counsel.Translating these circumstances into factors relevant to the application of EC 7-18 and DR 7-104, we view the mother as a witness unrepresented by counsel having interests adverse to the respondent.While the information which the respondent’s lawyer seeks to obtain could be injurious to the mother and although her interests are both presently and potentially adverse to those of the respondent, applying the foregoing principles and authorities, it would not be improper for the lawyer to obtain her statement provided he refrains from offering any advice to her and his communications with her are in all respects completely candid.