Somewhat paradoxically, many litigators are risk-averse. Perhaps that explains why so many of us have internalized a knee-jerk and literal interpretation of the ethical rules mandating “no contact” with individuals represented by counsel. Quite appropriately, the default position of many counsel is: “That guy has a lawyer, I cannot contact him without consent of his lawyer.” However, when it comes to criminal defense counsel in New York state, the reality is less clear.
New York Rule of Professional Conduct 4.2(a), titled “Communication with Person Represented by Counsel,” provides in part, that a lawyer “shall not communicate … about the subject of the representation with a party the lawyer knows to be represented by another lawyer in the matter” without prior consent of the other lawyer. Although the title refers to a represented “Person,” the relevant text refers to a represented “party.” The distinction is intentional. When a predecessor rule (Disciplinary Rule 7-104) was amended in 1999, it substituted the word “person” for “party,” tracking the same change made to ABA Model Rule 4.2 a few years earlier. Within months, however, the change was undone and the word “party” put back into the Rule. That word makes all the difference—at least in criminal cases. See In re Amgen, 2011 WL 2442047, at *10 n.17 (E.D.N.Y. 2011) (discussing history of changes).
In civil cases, the Rule and the word “party” in particular have been broadly read. For example, the New York State Bar’s Committee on Professional Ethics has held that “[o]utside the criminal context” the Rule applies to “any person or entity who is represented in a matter,” whether in a transaction, a potential lawsuit not yet filed, or a pending action, and to “represented witnesses [and] potential witnesses … although they are not nominal parties to the lawsuit.” NY Eth. Op. 735 (2001). The same Opinion notes that this is the way the Rule has been “uniformly interpreted” in civil cases. But what about when this familiar understanding has been applied to a criminal matter?
The seminal case in the Second Circuit remains Grievance Committee v. Simels, 48 F.3d 640 (2d Cir. 1995). Simels represented Brook Davis in connection with a multi-defendant drug conspiracy. The weekend before the trial, a government witness was shot. The government charged Aaron Harper—who was not a defendant in the drug conspiracy trial—with attempted murder. The government subsequently told Simels that it also intended to charge his client with the shooting and that a confidential witness (Harper) would testify at the drug trial. Simels then met with Harper and obtained a written affidavit exonerating Davis. Simels knew that Harper was represented by an attorney in the shooting case. Once these facts become known in the drug case, the trial judge disqualified Simels and declared a mistrial.
The Grievance Committee found that Simels violated DR 7-104 because Harper and Davis were “parties” to the same matter, defining “party” “broad[ly] enough to encompass the relationship between” Harper and Simels’s client. The Committee noted that while they “may not have been named in the same accusatory instrument, they were charged with the same crime.” See Simels, 48 F.3d at 644. The Second Circuit reversed the Committee on the grounds that Davis and Harper were not parties to the same litigation: Davis was a defendant in the drug conspiracy case and Harper was a defendant in the shooting case. That Davis was a “potential co-defendant” in the shooting case was not sufficient to qualify as a “party.”
In reaching its decision, the Second Circuit noted its concern that “the broad and ambiguous interpretation of ‘party’ employed by the Committee threaten[ed] to chill all sorts of investigations essential to a defense attorney’s preparation for trial . … Taken to its extreme, the Committee’s interpretation of ‘party’ might well bar defense counsel from contacting represented co-targets during the investigative phase of a large conspiracy.” Simels, 48 F.3d at 650-51. The Second Circuit made clear that Simels’s contact of a represented cooperating witness slated to testify against his client who was also a “potential codefendant” in charges relating to the shooting was “critical pre-trial investigation,” part of “providing the effective defense and the zealous representation required by the Sixth Amendment.” 48 F.3d at 651. Indeed, on somewhat similar facts, another court held that a defense lawyer who failed to contact such a witness had rendered ineffective assistance of counsel. Wisconsin v. Reno, 378 Wis.2d 740, at * 4-6 (2017).
Although the case law is sparse, a number of other cases followed the spirit of the Simels decision. People v. Kabir relied on Simels in holding that the Rule “does not include among its ancillary effects a shield against unwelcome communications from a defense attorney or prosecutor concerning a criminal proceeding as to which one is merely a witness.” 13 Misc.2d 920, 2006 N.Y. Slip Op. 26422 at *3 (Bronx Cty. 2006) (suggesting outcome might be different if witness was “potential defendant” in the same matter); accord People v. Quiroz, 15 Misc.2d 1128(A), 2007 WL 1247257 (Nassau Cty. 2007) (defense counsel did not violate rule by securing affidavit from alleged victim recanting allegations even though victim was represented in closely-related proceeding); NY Eth. Op. 884 (counsel for defendant in criminal case may interview complaining witness represented by counsel in related indictment). A case out of the District of Puerto Rico extrapolated Simels to various scenarios:
• “A potential witness against somebody else’s client, who may be a future defendant in the same case, is not a ‘party’”;
• “a cooperating witness who may be a possible codefendant or a party in a criminal proceeding is not a ‘party’”;
• “defense counsel may freely contact a represented co-target during the investigative phase of a conspiracy [prosecution]. The co-target … is not a ‘party.’”
United States v. Santiago-Lugo, 162 F.R.D. 11, 13 (D.P.R. 1995); cf. Simels, 48 F.3d at 651 (“defense counsel [may contact] represented co-targets during the investigative phase”). Along these lines, it has been held that a “subject or target of a grand jury investigation is not, by virtue of that status, a ‘party’ to a ‘matter’ within the meaning of the no-contact rule.” In re Amgen, 2011 WL 2442047, at * 10 (E.D.N.Y. 2011).
But what happens if an indictment is returned and someone who had been a “co-target” of an investigation becomes a co-defendant in the same indictment? At that point, she is a “party” in the same “matter” and the Rule applies with full force, forbidding unconsented contact. See In re Chan, 271 F. Supp. 2d 539 (S.D.N.Y. 2003); Santiago-Lugo, 162 F.R.D. at *13-14.
The Rule may also apply outside the context of co-defendants in the same matter. What about parallel DOJ and SEC investigations? At least one district court in the Second Circuit has held that such parallel investigations were the same “matter.” In United States v. Nouri, prosecutors arranged for two cooperating witnesses to tape-record the target of the criminal investigation (Nouri), knowing that he was represented by counsel in the SEC investigation. Then-District Judge Chin held that Nouri’s representation in the civil SEC case was “imputed” to the criminal case because the SEC and DOJ were “working together” investigating the same conduct. 611 F. Supp. 2d 380, 386 (S.D.N.Y. 2009). At the time of the recordings, neither the SEC nor DOJ had initiated proceedings, yet Judge Chin “conclude[d] that the SEC and DOJ investigations were the same ‘matter’” for purposes of the Rule. This holding seems at least somewhat inconsistent with the Second Circuit’s view that defense counsel may contact “represented co-targets during the investigative phase,” including “potential codefendants,” as well as Amgen’s holding that the target of a grand jury investigation is not “a ‘party’ to a ‘matter’” at all. Significantly, Nouri involved an undercover operation by the prosecution. While that perhaps explains the ruling, the case underscores the central point that defense counsel must tread carefully when weighing whether to contact a represented individual. While the rule in Simels seems to provide substantial leeway to criminal defense counsel, close attention must be given to the particular facts of a given case, including due consideration of jurisdictional questions (such as whether there is any chance that the ethical rules of a state other than New York might govern). While talking to a represented person might rarely be the right decision in a criminal case, one should be mindful that it can be an option.
Assume you represent a former high-ranking executive of a widget manufacturer. Assume her employer and your client are being investigated by the DOJ Antitrust Division for possible bid-rigging. A putative co-conspirator is the competition, World-Wide Widget Company (WWW). During the investigation phase, you want to contact certain former and current employees of WWW. Can you? The first question, of course, is whether any particular individual is indeed “represented.”
As to former employees, the analysis in New York is straightforward. Leaving aside all the other issues discussed above, ex parte interviews of former employees of a represented company adverse to your client in a civil matter “‘are neither unethical nor legally prohibited.’” Bacote v. Riverbay, 2017 WL 945103 at * 8 (S.D.N.Y. 2017). Certain current employees of WWW would not be considered “represented” even though WWW itself plainly was. See generally Niesig v. Team I, 76 N.Y. 2d 363 (1990) (current employees could be interviewed without company’s consent unless, e.g., they are the company’s “alter ego”). Even those executives who are likely to be deemed “represented” in the investigation, as well as executives who in fact have individual counsel, would seem to fall into the bucket of “represented co-targets during the investigative phase of a large conspiracy,” Simels, 48 F.3d at 650-51, and hence arguably are fair game. Indeed, pursuant to most of the cases discussed above, under Simels and its New York progeny, counsel could contact directly current or former employees of WWW (whether or not regarded as “represented,” either by company counsel or even their own individual counsel) up until your client and that WWW employee are indicted in the same indictment.
One must be mindful of the problematic decision in Nouri and, more fundamentally, contrary decisions from other jurisdictions. Nonetheless, a fair reading of the only Second Circuit case on point suggests that in criminal matters a defense lawyer has substantial leeway within which to zealously represent the client, even when that is in some tension with the “no-contact” rule. The modest suggestion of this article is that criminal defense counsel in New York give that due consideration, with care and prudence.
John M. Hillebrecht and Courtney Gilligan Saleski are national co-chairs of the white-collar, corporate crime, and investigations practice at DLA Piper LLP (US).