Maybe you are a fan of HBO’s “Real Time With Bill Maher” and its “New Rules” comedy segment, or you have read Maher’s “New Rules” books.¹ Or maybe Maher’s style does not resonate or you have no idea who Bill Maher is.

Regardless, hopefully you are paying attention, because New York’s Rules of Professional Conduct have a new rule. Effective January 1, 2025, Rule 3.4(f) strictly limits when lawyers may ask witnesses not to cooperate voluntarily.² Long existing in Connecticut and New Jersey, Rule 3.4(f) states one of the “least wellknown among lawyers’ ethics duties.”³

This month’s Ethics Corner takes a first look at New York’s new rule.

The Long Runway to New Rule 3.4(f)

New York’s Rule 3.4(f) was 90 years in the making. In 1935, the ABA inquired whether a lawyer may induce a non-client to withhold relevant facts. Reasoning that facts “belong” to the law itself rather than lawyers, the ABA opined that the Bar’s truth-seeking function must restrain competition in the adversarial system that otherwise might erect strategic barriers to truth.⁴

From this principled beginning, what ultimately became ABA Model Rule 3.4(f) framed unfettered access to witnesses as “Fairness to [an] Opposing Party and Counsel,” complementing Model Rules 3.4(b) (barring lawyers from inducing false testimony) and 4.2 (generally barring lawyers from contacting represented parties about the representation’s subject matter).⁵ Model Rule 3.4(f) evolved an exception for a client’s employee or agent, to honor the trust inhering in principal-agent relationships in which the agent “may identify their interests with those of the client” principal.⁶ Model Rule 3.4(f) evolved a second exception for client relatives, to minimize conflicts with family loyalty.⁷ The overwhelming majority of states adopted Model Rule 3.4(f) verbatim or with minor adjustments.

For nearly nine decades, however, New York maintained that the adversarial system lets lawyers discourage or inhibit witnesses from cooperating voluntarily.⁸ Even when New York adopted the Model Rules in 2008, it omitted Rule 3.4(f)—and there is no record why.⁹ Only in 2024 did the New York State Bar Association (“NYSBA”) prevail on our Judiciary to adopt Rule 3.4(f), reasoning that the measure was necessary to align New York with other states and help equalize prosecution and defense access to witnesses in criminal actions.¹⁰

How Does Rule 3.4(f) (Probably) Work?

Rule 3.4(f) provides that: “A lawyer shall not… request a person other than a client to refrain from voluntarily giving relevant information to another party unless: (1) the person is a relative or an employee or other agent of a client; and (2) the lawyer reasonably believes that the person’s interests will not be adversely affected by refraining from giving such information.”¹¹

As other states have held,¹² the two conditions for a lawyer to ask a non-client not to cooperate voluntarily—the witness is a client employee or agent, and the lawyer reasonably believes that the witness would not suffer harm—appear to be conjunctive. The lawyer must satisfy both.

As New York’s new rule is so new, guidance about its likely contours must draw from commentators, the common law of adopting jurisdictions, and rules of reason. Even so, many basic questions remain—which counsels caution.

To what contexts does it apply? Rule 3.4(f) contemplates no limit on its reach. It makes no distinction between litigation and transactional practice, pending and potential cases, official testimony and informal discussions, or fact testimony versus character or expert testimony. States that adopted Rule 3.4(f) have wielded it in a wide array of criminal and civil contexts: lawyers have been disciplined for discouraging victim impact statements,¹³ testimony in medical malpractice and other civil actions,¹⁴ or interviews with attorney ethics regulators.¹⁵ In criminal contexts, at least one state has noted that Rule 3.4(f) equally binds prosecutors and defenders.¹⁶

Who is a “relative”? Rule 3.4(f) is silent on this question. By contrast, the Rule 1.8(c) ban on soliciting gifts from clients carves out an exception for a lawyer “related” to the client, broadly defined as a “spouse, child, grandchild, parent, grandparent or other relative or individual with whom the … client maintains a close, familial relationship.” Rule 3.4(f)’s failure to similarly define or limit “relative” might tacitly include a client’s in-law or cousin however distant, but exclude an unmarried partner however long and committed the relationship.

Who is an “employee or other agent”? Rule 3.4(f) uses “employee,” not “independent contractor.” A non-employee professional or friend probably would not suffice: for instance, a lawyer might violate Rule 3.4(f) by asking a physician not to offer voluntary expert testimony.¹⁷ Notably, the rule states no mandate that witness knowledge arise from the agency relationship.

What is an “adversely affected” witness interest? Yet again silent, Rule 3.4(f) sets no minimum quantum of negative impact on the witness. In sharp contrast, conflicts of interest under Rules 1.9(a) (former client), 1.10(b) (imputed conflict) and 1.18(c) (prospective client) contemplate a “materially adverse” impact on the client. As such, a lawyer might violate Rule 3.4(f) if a voluntary witness would bear any negative effect by declining to cooperate.

What makes an attorney’s belief reasonable? The ABA and at least one state assert that a lawyer need not make active inquiry to “know or ascertain” that a voluntary witness would not harm themselves by declining to cooperate, “but any such knowledge, communication, or other information available to the lawyer may suggest that such a belief is reasonable.”¹⁸ If so, then New York lawyers should carefully consider all “information available” to them before making a Rule 3.4(f) request to a witness, and not assume that what they do not know cannot hurt them.

What (Probably) Falls Outside Rule 3.4(f) Concern?

Despite the array of unanswered questions, lawyers can take solace that— at least according to commentators— Rule 3.4(f) leaves undisturbed common day-to-day practices:

Option versus request. NYSBA opines that Rule 3.4(f) does not limit an attorney from advising a witness of their right not to be questioned voluntarily,¹⁹ as opposed to encouraging the witness to invoke that right. If so, then precise words to a potential witness matter greatly.

Interview conditions. The American Law Institute (“ALI”) opines that Rule 3.4(f) does not bar an attorney from advising a witness of their right to insist on conditions for voluntary interview, such as the presence of the lawyer or that the interview be or not be recorded.²⁰

Deposition preparation. ALI also opines that Rule 3.4(f) does not impair the practice of “preparing a friendly witness for testimony at a deposition or hearing … to warn the witness not to volunteer testimony not directly responsive to a question.”²¹

Conclusion

The New York lawyers’ duty not to impede access to evidence now extends to witnesses, except under strictly limited circumstances whose Rule 3.4(f) contours are not yet fully clear. As New York makes its way into this new rule, the best compliance guidance for lawyers might be much as the ABA put it in 1935: facts belong to the law, not lawyers.

Let us make humility to honor this principle our profession’s North Star.

Endnotes

1 W. Maher, New Rules: Polite Musings from a Timid Observer (2005); W. Maher, The New New Rules (2011).

2 47 N.Y. Reg. 193 (Jan. 29, 2025); AO (Zayas) 399/2024 (Dec. 21, 2024).

3 J. Bauer, “Buying Witness Silence: Evidence Suppressing Settlements and Lawyers’ Ethics, 87 Or. L. Rev. 481, 509 (2008); see E.F. Lidge, “The Parameters of Model Rule 3.4(f)’s Exception for a Client’s Employees,” 47 Fl. St. Univ. L. Rev. 1, 6 n.21 (2019).

4 ABA Comm. on Professional Ethics & Grievances, Formal Op. 131 (1935).

5 See Lidge, supra n.3, at 6-7; see also Nieseg v. Team I, 76 N.Y.2d 363 (1990); Model Rule 3.4(a), comm. 1.

6 ABA Model Rule 3.4, comm. 4.

7 See G.C. Hazard et al., 2 The Law of Lawyering § 30.12 (3d ed. & Supp. 2007).

8 See e.g. Simon’s New York Rules of Professional Conduct § 3.4:16 (July 2004 update).

9 See N.Y. City Ethics Op. 2009-5.

10 NYSBA Memorandum to David Nocenti, Counsel for the Unified Court System (May 13, 2024), at 6-7.

11 22 NYCRR [Joint Rules of the Appellate Division] § 1200, rule 3.4(f).

12 See e.g. Kentucky Bar Assn. v Unnamed Attorney, 414 S.W.3d 412 (Ky. 2013); In re Walsh, 182 P.2d 1218 (Kan. 2008); Matter of Alcantara, 676 A.2d 1030 (N.J. 1995).

13 See e.g. Bd. of Professional Responsibility v. Custis, 295 P.3d 334 (Wyo. 2012).

14 See State ex rel. Oklahoma Bar Assn. v. Cox, 48 P.3d 780 (Okla. 2002); Briggs v. McWeeny, 796 A.2d 516 (Conn. 2002).

15 See e.g. Matter of Nwakanma, 397 P.3d 403 (Kan. 2017); Kentucky Bar Assn., 414 S.W.3d at 412.

16 See Hill v. State, 301 S.W.2d 78, 83 (Mo. App. 2010).

17 See Cox, 48 P.3d at 780; compare CPLR 4504 (physician-patient privilege).

18 Kentucky Bar Assn., 414 S.W.2d at 418, quoting ABA Model Rule 3.4(f), comm. 4.

19 See NYSBA Memorandum, supra n.10, at 7; Amer. Law Inst., Rest. 3d Law Governing Lawyers § 116(4), comm. [e].

20 Rest. 3d Law Governing Lawyers § 116(4), comms. [b], [e].

21 Id., comm. [e].