P, a pedestrian, is personally injured as a result of a two car automobile accident in which one of the vehicles is owned by A and operated by B and the ether automobile is both owned and operated by C. Two legal actions resulted from the accident. In the first action C, the owner and driver, sues A and B. In the second action P sues A, B and C. In both actions the owner a claims that driver B did not have his permission or consent to operate the vehicle. Different attorneys represent driver B in the two actions, and in the second action B is in default although the case has been noticed for trial since he has merely served a notice of appearance and has failed to interpose an answer. The attorneys for B in both actions have been unable to locate their client over a period of two years. These attorneys have withdrawn their representation of B and have written letters to various parties stating that they no longer represent B.
Based upon the. foregoing, is it proper for the attorneys representing P to
(1) Attempt to locate B who is a necessary and material witness.
(2) Attempt to ascertain from B his version of the accident and the use of the automobile. As indicated above, B is in default in the action brought by P.
There would be no impropriety in an attempt by P’s attorneys to locate B. In fact it would appear to be their duty to do so.
The question as to whether P’s attorneys, upon locating B, may properly interview B to ascertain his version of the facts is governed by Canon 9, which reads as follows:
“A lawyer should not in any way communicate upon the subject of controversy with a party represented by counsel; much less should he undertake to negotiate or compromise the matter with him, but should deal only with his counsel, It is incumbent upon the lawyer most particularly to avoid anything that may tend to mislead a party not represented by counsel, and he should not undertake to advise him as to the law.”
Assuming that B is given notice that his attorneys in both actions have withdrawn their representation of him and assuming further that B fails to appoint new counsel after a reasonable opportunity to do so (see Canon 44), we believe it would be proper for P’s attorneys to interview B to ascertain the relevant facts (see Opinions 533, 331, 101 and 42 of the Committee on Ethics of the Association of the Bar of the City of New York).
July 8, 1963