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).