We would like to obtain from you an opinion as to whether it is ethical for us, as attorneys for the plaintiff, to communicate with the defendant personally on a matter not “the subject of controversy with a party represented by counsel;” We wish to communicate with the defendant under the following circumstances:
A notice of examination before trial was served upon the defendant’s attorney requiring the defendant to appear for examination, Upon his failure to do so on a number of times, an order was obtained from the Supreme Court directing the defendant to appear and submit to pre-trial examination on October 17, 1969. That same order stated “that the answer of the defendant; be and the same is hereby stricken unless said defendant appears and submits to the pre-trial examination on the above date” and pays $25, 00 costs, The defendant did not appear on that date and his attorney declared that the insurance carrier was going to disclaim under the policy because his client had refused to cooperate with them. It must be pointed out that the defendant’s attorney is an employee of defendant’s insurance company. Since the defendant’s attorney stated that his employer, the insurance company, will disclaim for defendant’s failure, we wish to determine whether the defendant did fail to cooperate or whether his failure to appear was justified or if the facts, as we suspect, may have been a failure to communicate between the defendant and his attorneys or the defendant and the insurance company.
Thus, we are advising you that we intend to communicate with the defendant, not as to the subject of controversy (which is a motor vehicle accident) but only as to the reasons for his failure to appear upon the examination before trial.
In our opinion it is improper for the inquiring attorneys to communicate with the defendant for the purposes stated in the question.
The Code of Professional Responsibility, which has been adopted by the American Bar Association and made effective in New York on January 1, 1970 by the New York State Bar Association, provides by DR 7-104 (A) (1):
“During the course of his representation of a client a lawyer shall not 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.”
Canon 9 of Professional Ethics provided in part:
“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, <Text not Clear>
The inquiry deals with the prosecution and defense of the action, and possibly the collection of a judgment, and therefore falls within the scope of the Canon’s proscription.
The question indicates a belief that the communication is proper because of a suggested conflict of interest on the part of the attorney for the defendant since he is an employee of the defendant’s insurer, and of a yielding by him in favor of his employer. This suggestion carries with it a grave implication of professional misconduct as the employee-attorney has the same professional obligations to the defendant that he would have if he were a lawyer in Private practice (see N.Y. City Opinion 302.)
It seems to us that much more than a “suspicion” that the defendant’s attorney is violating his trust to the defendant is needed to justify a violation of Canon 9 by plaintiff’s attorney (see A.B.A. Opinion 235).
March 26, 1970