author: Simons, J. Kaye, J.

text:
    The People of the State of New York, Respondent, v Bruce Bing, Appellant. The People of the State of New York, Appellant, v Thomas Cawley, Respondent. The People of the State of New York, Respondent, v Luis Medina, Appellant.
    Argued March 20,1990;
    decided July 2, 1990
    Argued March 21, 1990;
    decided July 2, 1990

      POINTS OF COUNSEL

      Jeremy L. Goldberg, Matthew Muraskin and Kent V. Moston for appellant in the first above-entitled action.

      Denis Dillon, District Attorney, Nassau County (Peter Shapiro and Bruce E. Whitney of counsel), for respondent in the first above-entitled action.

      Robert M. Morgenthau, District Attorney, New York County (Phyllis A. Monroe, Norman Barclay and David I. Futter of counsel), for appellant in the second above-entitled action.

      Richard Sweren and Lawrence Leaner for respondent in the second above-entitled action.

      Richard N. Allman and Philip L. Weinstein for appellant in the third above-entitled action.

      Robert M. Morgenthau, District Attorney, New York County (Robert M. Pitler, Mark Dwyer and Atea Martin of counsel), for respondent in the third above-entitled action.
   OPINION OF THE COURT

Simons, J.

In People v Bartolomeo (53 NY2d 225), we held that a suspect, represented by counsel on a prior pending charge, may not waive his rights in the absence of counsel and answer questions on new unrelated charges. If the police are chargeable with knowledge of the prior representation, any statements the suspect makes, not only about the prior charges but also about the new charges, must be suppressed. Since the rule was announced nine years ago, scarcely a term of court has passed without a Bartolomeo issue being presented to us in one form or another. The three appeals before us, all presenting factual settings encompassed within the Bartolomeo paradigm, call upon us to reexamine the rule once more and to determine whether it continues to be a workable predicate for the exclusionary rule.

In People v Bing, defendant, suspected of a New York burglary, was arrested in Nassau County on an Ohio warrant after a police teletype confirmed that he was wanted for burglary in that State. He had counsel on the pending Ohio charge but the police, though alerted by the outstanding bench warrant, made no inquiry about the representation when they called Ohio to confirm the warrant or when questioning defendant. After receiving Miranda warnings defendant waived his right to counsel on the New York charges and admitted his involvement in the Nassau County burglary.

Defendant moved to suppress his statements claiming that because of his representation on the prior pending charge in Ohio his rights had attached indelibly under Bartolomeo and he could not waive them in the absence of counsel. The People urged that a geographical limit should be recognized and that out-of-State charges should not trigger the Bartolomeo right to counsel on New York charges. The courts below agreed and denied suppression.

In People v Cawley, defendant was charged in New York with robbery, second degree. Following his arraignment, with counsel present, he was admitted to bail. He absconded and remained a fugitive until returned to this State on a bench warrant six months later. Upon interrogation by a police officer unaware of the prior representation, defendant waived his Miranda rights and gave inculpatory statements about new, unrelated criminal conduct, confessing not only to a suspected murder and robbery, but also to his involvement in a second murder. Defendant subsequently pleaded guilty to petit larceny in satisfaction of the original robbery charge and received a sentence of 30 days’ imprisonment. Some days after being released, he was arrested on the new charges, waived his rights and again confessed to murder and robbery.

The trial court, relying on Bartolomeo, granted a pretrial motion to suppress the first confession. It also suppressed the confession obtained after disposition of the pending charge, holding it not sufficiently attenuated from the prior unlawful conduct. On appeal, the People contended that defendant relinquished his attorney-client relationship on the pending charge by absconding and failing to maintain contact with his lawyer while gone. The Appellate Division rejected that argument and affirmed, without opinion.

In People v Medina, defendant was convicted of murdering two neighbors. A detective investigating the homicides learned that defendant had recently been released from jail after being held on an assault charge. While questioning him at the scene, the detective asked defendant about the prior case. Defendant told the detective that he had been "let go”. When the detective asked "why?”, Medina replied that he had been "let go” because the complaining witness had failed to appear in court on four separate occasions. The detective concluded that defendant’s case had been dismissed and later, after defendant waived his Miranda rights at the police station, obtained inculpatory statements from him. Defendant moved to suppress the statements claiming that under Bartolomeo he could not waive his rights on the new unrelated crimes because of his representation on the prior charge.

The trial court denied his motion to suppress, finding that although the police knew of the unrelated charge, they reasonably believed it had been dismissed. It also denied defendant’s trial motion to submit the issue of the voluntariness of his statements to the jury pursuant to CPL 60.45 (2) (b) (ii) and 710.70 and our ruling in People v Graham (55 NY2d 144). On appeal the Appellate Division affirmed, with two Justices dissenting. The dissenters believed the statements should have been suppressed under Bartolomeo because the police had failed to make a sufficient effort to determine whether the prior charge had been dismissed but that even if they had, defendant was entitled to have the voluntariness of his statements submitted to the jury (see, People v Medina, 146 AD2d 344). The District Attorney, noting the recurring problems in applying the Bartolomeo rule and its weak jurisprudential foundation, urges that we overrule it.

The rulings sought by the People in these appeals require us to do more than modify the scope of the Bartolomeo rule, as we have done in the past. The exceptions advanced in Bing and Cawley, as compelling as they are under the facts presented, would undercut the basis of the rule by limiting its application solely because of the situs of the attorney-client relationship in Bing and because of the quality of the relationship in Cawley. Presumably, the exception urged in Cawley would require the trial court to inquire into the substantiality of the attorney-client relationship, a matter which has not concerned us in Bartolomeo cases previously, to determine if the suspect could waive a right which we have held indelible once it attaches. Defendant’s proposal in Medina would require us to submit to the jury the question of whether the Bartolomeo right attached to determine whether defendant’s confession was "involuntary” under CPL 710.70 (3). The voluntariness of defendant’s statement, however, is irrelevant to the application of the Bartolomeo rule. Concededly, his waiver and statements were voluntary. The question is whether defendant’s derivative right had indelibly attached so that he could not waive it in the absence of counsel.

The appeals demonstrate graphically the recurring problems we have had with the Bartolomeo rule. When it is applied to the circumstances in each case, the result is not only unworkable but it imposes an unacceptable burden on law enforcement. Nor can the results be avoided by modifying or creating exceptions to the rule without undermining its rationale. We conclude, therefore, that a fundamental change is required and, notwithstanding compelling concerns of starq decisis, we hold that People v Bartolomeo should be overruled.

I

The doctrine of stare decisis provides that once a court has decided a legal issue, subsequent appeals presenting similar facts should be decided in conformity with the earlier decision. Its purpose is to promote efficiency and provide guidance and consistency in future cases by recognizing that legal questions, once settled, should not be reexamined every time they are presented. The doctrine also rests upon the principle that a court is an institution, not merely a collection of individuals, and that governing rules of law do not change merely because the personnel of the court changes.

Precedents remain precedents, however, not because they are established but because they serve the underlying " 'nature and object of the law itself ”, reason and the power to advance justice (see, Von Moschzisker, Stare Decisis in Courts of Last Resort, 37 Harv L Rev 409, 414). As Justice Frankfurter observed, "stare decisis is a principle of policy and not a mechanical formula of adherence to the latest decision, however recent and questionable” (Helvering v Hal-lock, 309 US 106, 119). Although a court should be slow to overrule its precedents, there is little reason to avoid doing so when persuaded by the "lessons of experience and the force of better reasoning” (Burnet v Coronado Oil & Gas Co., 285 US 393, 407-408 [Brandeis, J., dissenting]; see also, People v Hobson, 39 NY2d 479, 488-489; see generally, Wachtler, Stare Decisis and a Changing New York Court of Appeals, 59 St John’s L Rev 445, 453). This is especially so in constitutional interpretation where legislative change is practically impossible.

An examination of People v Bartolomeo, its antecedents and the experience of the courts in applying it, demonstrates that overruling it is consistent with these principles and required by sound policy. Recognizing our obligation to justify so significant a change, however, we explain our reasons in some detail.

II

Analysis starts with the legal basis for our rules. The Right to Counsel Clause in the State Constitution is more restrictive than that guaranteed by the Sixth Amendment to the United States Constitution (compare, NY Const, art I, § 6, with US Const 6th, 14th Amends). Nevertheless, by resting the right upon this State’s constitutional provisions guaranteeing the privilege against self-incrimination, the right to assistance of counsel and due process of law we have provided protection to accuseds far more expansive than the Federal counterpart (see, People v Davis, 75 NY2d 517, 521; People v Hobson, 39 NY2d 479, 483-484, supra).

There are two well-defined situations in which the right is said to attach indelibly under the State Constitution and a waiver, notwithstanding the client’s right to waive generally, will not be recognized unless made in the presence of counsel. The first, similar to the Federal right (see, Kirby v Illinois, 406 US 682), deals with waivers after formal proceedings have commenced (People v Samuels, 49 NY2d 218; People v Cunningham, 49 NY2d 203, 208; People v Settles, 46 NY2d 154). The second, recognized only in New York, relates to uncharged individuals in custody who have retained or requested an attorney. Police authorities may not question them in the absence of counsel (People v Hobson, 39 NY2d 479, 481, supra; People v Arthur, 22 NY2d 325, 329; see, People v Skinner, 52 NY2d 24, 26).

The scope of these rules is seemingly far removed from the language of the State Constitution but they are said to rest on notions of common sense and fairness and, by requiring the presence of counsel, "[breathe] life into the requirement that a waiver of a constitutional right must be competent, intelligent and voluntary” (People v Hobson, supra, at 484; see, People v Davis, 75 NY2d 517, supra). The rules are also supported by the Code of Professional Responsibility which forbids lawyers from "[c]ommunicat[ing] or caus[ing] another to communicate on the subject of the representation with a party he knows to be represented by a lawyer in that matter” without the prior consent of the party’s lawyer (see, DR 7-104 [A] [1]; see also, People v Davis, supra; People v Skinner, supra, at 29-30; People v Hobson, supra, at 484). We have applied that proscription, by analogy, to officials of the State in criminal proceedings. Underlying all these considerations is a recognition of the imbalance between a suspect and the agents of the State, the coercive influences the State may bring to bear on one suspected of crime and acknowledgement that a party who has expressed the inability to deal with those forces without legal help is entitled to have help available without State interference (see, People v Rogers, 48 NY2d 167, 173).

Notwithstanding these rules, however, it had been understood in the past that the right to counsel did not require exclusion of statements made to police in response to inquiries about crimes unrelated to those on which the suspect had representation (People v Taylor, 27 NY2d 327, 330-332; see also, People v Ramos, 40 NY2d 610, 616-617; People v Hobson, 39 NY2d 479, 483, supra; People v Hetherington, 27 NY2d 242, 245; People v Stanley, 15 NY2d 30, 32-33, cert dismissed 382 US 802).

We modified the Taylor rule somewhat in People v Rogers (48 NY2d 167, supra). In that case, defendant, after being taken into custody for robbery, told the police that he was represented by counsel. Nonetheless, the police interrogated him about the robbery for two hours until his attorney telephoned and directed that interrogation cease. The police then simply shifted the focus and questioned Rogers about unrelated crimes. Shortly after the four-hour interrogation was over, defendant made an allegedly spontaneous statement about the robbery on which he was represented.

Our holding, contained in the very first sentences of the opinion, emphasized that since defendant was represented on the charge on which he was held in custody, he could not be interrogated in the absence of counsel on any matter, whether related or unrelated to the subject of the representation (id., at 169). We concluded that the statement was anything but spontaneous and had resulted from exploiting custody on the crime on which Rogers had counsel. The court recognized the Taylor rule permitting questioning on unrelated charges but cited recent refinements to that rule precluding interrogation on either charge in the absence of counsel where the charges were sufficiently related (see, People v Carl, 46 NY2d 806, 807; see also, People v Ermo, 47 NY2d 863, 865; People v Townes, 41 NY2d 97, 104; People v Ramos, 40 NY2d 610, 617). Under such circumstances, the Taylor rule necessarily gave way to insure that questioning stopped and "accidental” interference with the established lawyer-client relationship was avoided.

In February 1981, only four months before Bartolomeo was handed down, we ruled that the existence of a pending criminal case upon which defendant’s right to counsel had attached did not bar the police from questioning defendant on new unrelated charges when he was not, in fact, represented on the pending charge (People v Kazmarick, 52 NY2d 322). In Kazmarick, an arrest warrant was issued for defendant on a shoplifting charge. Police subsequently questioned him on a murder charge and he gave an inculpatory statement concerning the murder. No attempt had been made to execute the shoplifting warrant, but we recognized that the filing of the accusatory instrument triggered a right to counsel with respect to that charge (see, People v Settles, 46 NY2d 154, 165, supra). Nevertheless, consistent with the Taylor rule, we refused to recognize an indelible right to counsel on the new, unrelated murder charge, noting that "[n]one of our decisions go so far * * * as to hold the police bound because they had reason to know of another charge on which defendant’s right to counsel has attached” (52 NY2d, at 328-329 [emphasis in original]).

Ill

It was against this background that the court in June 1981 issued its decision prohibiting the police from questioning a suspect not only on the pending charge, on which the right to counsel had attached, but also on a new, unrelated charge under investigation on which defendant had waived the right to counsel (People v Bartolomeo, 53 NY2d 225, supra; see also, People v Miller, 54 NY2d 616). In Bartolomeo, defendant was taken into custody during a murder investigation. He had been arrested nine days earlier on an arson charge and, although the police were unaware of it, he had retained counsel on that charge. Defendant voluntarily waived his Miranda rights and made statements incriminating himself in the murder. The courts below, applying settled law, found no fault with the questioning on the murder after defendant had made a valid waiver of his rights but we vacated the conviction and ordered the statements suppressed.

Our decision left a number of unanswered questions. Why, for example, if the rule created a remedy to protect only rights in the pending case and not on the new charge, was not exclusion solely in the pending case adequate protection? Conversely, if exclusion was required to protect an independent right to counsel with respect to the new crime, there was no explanation of why Rogers should be expanded so dramatically to protect a suspect against self-incrimination on the new crime unrelated to the matter upon which defendant actually obtained representation. Moreover, the decision did not explain why a rule requiring the presence of counsel to waive one’s rights before criminal proceedings have been instituted, which is well beyond even the most generous reading of the State constitutional privilege against self-incrimination, was necessary. The first-time arrestee, with no criminal experience, may waive his rights and be questioned without the presence of counsel. Miranda v Arizona (384 US 436) requires only a warning of the right to counsel, not the actual presence of counsel (see, People v Davis, 75 NY2d 517, 522-523, supra; see also, People v Gary, 31 NY2d 68). Why then should the second-time offender, who presumably has received prior advice on how to deal with the authorities and has voluntarily chosen a different course of action on the new charge, be foreclosed from waiving his rights on the matter for which he was detained? As the dissenters noted, the court, without apparent reason, had provided "a dispensation” for persistent offenders for it is the common criminal, not the first-time offender, who will nearly always have representation on a pending charge and thus be immunized from questioning in subsequent investigations (see, People v Bartolomeo, 53 NY2d 225, 236-239, supra [Wachtler, J., dissenting]). Moreover, the decision was not only irreconcilable with the court’s recent decision in Kazmarick but also served to extend other prior cases well beyond their intended scope (id.). It could not be justified on the ground that the pending charges were related to the new charges (see, People v Carl, 46 NY2d 806, supra; People v Townes, 41 NY2d 97, supra) or because the police had been advised they should avoid questioning defendant or knew counsel had been retained (see, People v Carl, supra; People v Ramos, supra).

This failure to elaborate the basis for the rule, and the questionable policy behind it, were to cause considerable difficulty in subsequent cases as the court tried to integrate the decision into existing law. Its application became uneven, introducing uncertainty into the rule itself and destabilizing the law on the right to counsel in general. Apparently, one motivation for the decision was the belief that because of the short interval between the arson arrest and the murder investigation the police either did or should have viewed the crimes together. Even this rationale became attenuated, however, when the court extended the rule to cover charges lodged many months earlier (see, People v Smith, 54 NY2d 954, 955).

Decisions after Bartolomeo demonstrate our efforts to limit the rule to better balance the benefits of evenhanded administration of the criminal law with the cost the rule exacted from effective law enforcement. Thus, we modified the requirement that police aware of a prior outstanding charge must be held to knowledge that a reasonable inquiry would have disclosed by subsequently ruling that actual knowledge of the pending charge was required before defendant’s derivative right to counsel had been violated (see, e.g., People v Bertolo, 65 NY2d 111, 112; People v Fuschino, 59 NY2d 91, 98; People v Servidlo, 54 NY2d 951, 953 [no reason to believe there was deliberate oversight on part of police "even though (the charges) were pending within the same county and presumably the same department and were but two and one-half months old”]). We also placed the burden of proving police knowledge on the defendant (People v Rosa, 65 NY2d 380, 384) and held that although the police may have a duty to inquire of defendant under some circumstances, they could accept at face value a defendant’s response that he or she is without counsel on prior charges (People v Lucarano, 61 NY2d 138). Although we found these changes necessary to keep the rule within reasonable limits, they elicited the observation from one commentator that if the court was really committed to the Bartolomeo "right”, its subsequent decisions had not helped nourish it (see, Note, Prior Representation and the Duty to Inquire: Breaching New York’s "Once-an-Attorney” Rule, 10 Cardozo L Rev 259, 262 [1988]).

We also found it necessary to limit the rule in several other respects. For example, we held that a defendant in custody, represented by counsel in an unrelated case, had no right to the presence of his attorney before being placed in a lineup (People v Hawkins, 55 NY2d 474, 485, cert denied 459 US 846; see also, People v Hernandez, 70 NY2d 833) and that police may eavesdrop on conversations between an informer and a suspect who has counsel on a pending charge (People v Hauswirth, 60 NY2d 904). In People v Colwell (65 NY2d 883, 885), we refused to suppress statements about a new crime made while a prior crime on which defendant was represented was on appeal. In People v Robles (72 NY2d 689), we refused to suppress statements made by a defendant after the prior pending charges, on which defendant had counsel, were dismissed by the police for the very purpose of interrogating defendant on the new charges (see also, People v Mann, 60 NY2d 792).

It was not until our decision in Robles that a rationale for the rule was stated: the right to counsel on the new charge was derived from representation on a prior pending charge. When the prior charge has been disposed of by dismissal or conviction, the indelible right to counsel disappears and the defendant is capable of waiving counsel on the new charge (see, People v Robles, supra, at 698).

IV

The facts in the three appeals now before us mirror those of Bartolomeo. Defendants had counsel on prior pending charges and the police, although aware of the charges, made no inquiry (or insufficient inquiry, it is claimed in Medina) about representation. They were chargeable with the knowledge that inquiry would have disclosed, however, and by accepting defendants’ waivers and questioning them at a time when they could not waive their rights in the absence of their attorneys, the police violated the defendants’ derivative rights to counsel (see, People v Ferrara, 54 NY2d 498, 507). Thus, the appeals involve no more than a routine application of the Bartolomeo rule and under a strict application of the doctrine of stare decisis, which requires that cases similar to each other be decided the same, defendants’ statements must be suppressed.

The People, however, noting that we approved a substantive exception to the rule for cases on appeal (see, People v Colwell, 65 NY2d 883, supra), would have us add new exceptions in Bing, for pending charges in other States, and in Cawley, for defendants who implicitly relinquish the attorney-client relationship by absconding.

To support these contentions, the People note in Bing that it is more difficult for Ohio counsel to appear and effect a waiver; indeed they question whether attorneys licensed in other States could appear in New York. Surely, if defendant had retained Ohio counsel on the Nassau County charges, however, we would recognize that representation, notwithstanding the lack of admission to the New York Bar or any difficulty counsel might experience in appearing on defendant’s behalf. If we recognize the need to protect a defendant’s independent New York right to counsel, it is difficult to understand why we should refuse to protect his equally important derivative New York right to counsel. It is the New York enforcement agencies that violate the suspect’s rights and thereby discover evidence that they will, almost certainly, deliver to Ohio authorities and ignoring their conduct frustrates this State’s recognized interest in protecting the attorney-client relationship (cf., People v Griminger, 71 NY2d 635, 641 [evidence legally seized pursuant to a warrant valid under Federal law suppressed in a State prosecution because it did not satisfy New York standards]). There is no logical reason to proscribe the police conduct if the pending charge is in New York but permit it if the pending charge is in Ohio.

That leaves as a basis for the exception practical difficulties in determining (1) whether there are pending charges in Ohio and (2) defendant’s representation on those charges. As real as those difficulties may be, they are hardly a principled basis for denying a constitutional right (see, People v Rogers, 48 NY2d 167, 173, supra; People v Settles, 46 NY2d 154, 164, supra; People v Donovan, 13 NY2d 148, 152; but see, People v Krom, 61 NY2d 187 [the emergency exception]). We implicitly recognized as much in earlier decisions requiring the police to engage in a good-faith effort to determine if there was representation on the pending charges (see, People v Bertolo, 65 NY2d 111, 120, supra; People v Lucarano, 61 NY2d 138, 146-148, supra; People v Fuschino, 59 NY2d 91, 98, supra). Moreover, the problems presented by geography in Bing are not significantly different from problems the Nassau police would have encountered if the pending proceedings arose in other parts of New York State, in Buffalo, for example, and may be resolved by a teletype or telephone inquiry. They should not be grounds for limiting a defendant’s constitutional rights.

Furthermore, the suggested remedy in Bing, suppression of the evidence in the trial of the Ohio charge, is precisely the remedy we rejected in People v Bartolomeo (see, 53 NY2d, at 229). If the remedy is inadequate when the pending charges are in New York, it should not be sufficient when the pending charges are out-of-State. The value New York courts place on the rights of a defendant in custody is the significant consideration, not the value the Ohio courts place on them, and it would be inconsistent to refuse protection to defendant and defer to the Ohio courts in this case when in all likelihood Ohio does not recognize a derivative right to counsel.

In Cawley, the District Attorney contends with equal force that a defendant who absconds and never contacts his lawyer during the six months he is a fugitive has terminated the attorney-client relationship. He notes that the only time defendant met his attorney was at arraignment and when returned to the jurisdiction defendant could not remember the name or even whether the attorney was a man or woman. When defendant was given an opportunity to call a lawyer, his only response was, "Who am I going to call?” Based on this, the People assert that defendant had severed the attorney-client relationship and, inasmuch as it no longer existed, there is no special need to protect it.

The Bartolomeo right to counsel is indelible, however, and once it attaches the defendant cannot waive it in the absence of counsel. If a defendant cannot expressly reject counsel, there seems to be little legal basis for a judicial inquiry to determine whether he or she has impliedly done so. For the purposes of Bartolomeo, a defendant is either represented on the prior charge or not.

In sum, the situs of the attorney-client relationship or its attenuation by time and disinterest may present practical concerns but they are legally irrelevant under Bartolomeo. The legal basis for the rule is a derivative right arising from an established attorney-client relationship on prior pending charges. Bing and Cawley had established attorney-client relationships. Thus, they had existing derivative rights. Ignoring the sources of those rights, far from making the Bartolomeo rule more reasonable or workable, erodes the jurisprudential basis on which it rests.

In Medina, we are bound by the factual findings below that the police acted reasonably in interrogating defendant. There remains, however, the procedural problem presented by defendant’s contention that the voluntariness of his statements should have been submitted to the jury pursuant to CPL 60.45 and 710.70. CPL 710.70 (3) gives defendants the right to submit to the jury all claims that a statement was involuntarily made within the meaning of CPL 60.45. The police were guilty of no coercion, however; at worst they took defendant’s statements at a time when his derivative right to counsel had attached without sufficiently investigating whether he had counsel on a prior pending case. "Involuntariness” is not in issue because even if defendant’s statements were voluntarily given after a waiver of Miranda rights, Bartolomeo requires the presence of counsel before such a waiver is effective. However, that is not the thrust of the inquiry authorized by CPL 710.70 and 60.45 (cf., People v Hamlin, 71 NY2d 750, 761 [reasonableness of police conduct in search and seizure matter is not a jury issue]). The concurring Judges see this as only a routine matter but the Judges on the Appellate Division divided 3-2 on the issue, each side writing a lengthy decision to sustain its position.

V

Inasmuch as these appeals fall squarely within Bartolomeo and exceptions cannot be recognized, the question remains whether the rule has become so unworkable that it should be abandoned.

As the People contend in Bing, compliance with Bartolomeo may present an unacceptable obstruction to law enforcement when the predicate attorney-client relationship arises out-of-State. Not only may communications between law enforcement agencies be difficult but substantive and procedural law may vary from State to State and present special difficulties for the New York police. Moreover, if an Ohio charge may serve as a predicate for a derivative right to counsel, so may a pending charge in Timbuktu, thereby compounding the problem. Nor can the rule rationally be applied in Cawley. The defendant there expressed no concern over dealing with the "awesome power of the State” (see, People v Cunningham, 49 NY2d 203, 207, supra; People v Rogers, 48 NY2d 167, 173, supra; dissenting opn, at 351, 352); he voluntarily and knowingly waived his rights. To afford him an indelible right to counsel on the new murder and robbery charges based on the superficial relationship with a lawyer assigned to him for arraignment on the prior charges, presses reason to the limit.

Medina illustrates the procedural anomalies Bartolomeo can produce. Defendant’s statements were unquestionably voluntary. He waived his Miranda rights and spoke to the police and but for Bartolomeo he was legally capable of waiving those rights. Nevertheless, under a literal application of the Criminal Procedure Law, he has a colorable claim for the jury to consider, unrelated to the voluntariness of his statements, i.e., whether the police acting in bad faith violated his derivative right to counsel. The Legislature did not address, and could not have anticipated, such an inquiry when it enacted the statute (see, Bellacosa, Practice Commentary, McKinney’s Cons Laws of NY, Book 11A, CPL 60.45).

Bartolomeo’s effect on our jurisprudence is even more troublesome. Even now, after nine years, the Judges considering these cases are sharply divided not merely about how to apply the Bartolomeo rule but about the more fundamental question of whether the facts presented are even encompassed within it. The point is nowhere more evident than in this court where the concurring Judges would deny Bing the benefit of a viable attorney-client relationship, which the rule is supposed to protect, but recognize defendant Cawley’s relationship with his attorney, which is dead. Manifestly, our many decisions in this area have failed to achieve the efficiency, consistency and uniformity in the application of the law which the doctrine of stare decisis seeks to promote.

Nor can Bartolomeo be justified as a matter of policy. As a people we have elected to strike a balance between society’s need to investigate and prosecute crime and the right of individuals to be free from the police intimidation and harassment that can result from it. The Cawley case illustrates, perhaps more vividly than the others, the extraordinary price the rule has exacted from society. The trial court held the inculpatory statements had to be suppressed because of defendant’s representation on the charge from which he had absconded. After the pending charge was resolved by a plea bargain, a subsequent statement was taken from defendant but it also had to be suppressed because not sufficiently attenuated from the statements taken in violation of Bartolomeo (cf., People v Robles, supra). An able and experienced Trial Judge, reluctantly applying Bartolomeo, noted that the statements were voluntary beyond question and that they truthfully and accurately detailed defendant’s complicity in the crimes he committed after absconding. Under Bartolomeo, however, the subsequent robbery and murder charges against Cawley would have to be dismissed for lack of sufficient evidence after the statements were suppressed and his inculpatory statements about the second murder committed while he was at liberty, and on which he had not yet been charged, could not be used in the future.

The right to assistance of counsel is one of the important means of protection against police harassment afforded individuals. But the right recognized must rest on some principled basis which justifies its social cost. Bartolomeo has no such basis. It rests on a fictional attorney-client relationship derived from a prior charge and premised on the belief that a lawyer would not refuse to aid his newly charged client. The decision to retain counsel rests with the client, however, not the lawyer (see, People v Davis, supra) and by hypothesis Bartolomeo defendants have waived their right to counsel and chosen not to hire a lawyer to represent them on the new unrelated charges. Indeed, they have done so after receiving the benefit of legal advice and after at least one prior experience dealing with the authorities.

The concurring Judges contend that Bartolomeo is premised on the necessity to have an attorney present to determine whether the interrogation is related to the prior pending charges. If that is so the Bartolomeo court failed to identify that concern as a basis for its decision. But more to the point, the need for a bright-line rule was recognized in Rogers because an attorney had entered the proceeding for which defendant was arrested. We decided that under those circumstances the attorney must be allowed to resolve whether police questioning was related to those charges on which defendant was represented. There is no such requirement in these cases, however, because no attorneys had appeared in the proceedings and defendants voluntarily chose to forego legal representation on the new charges. Thus, there is no basis for the concurrence’s argument that the attorney must be brought into the new proceeding to decide whether the questions are related to the prior charges. The courts are fully capable of protecting the defendants’ rights on both the prior pending charges and the new charges. Moreover, the purposes allegedly furthered by such a bright-line rule are hardly served if we continually create exceptions to it (see also, People v Colwell, 65 NY2d 883, supra).

Finally, permitting questioning on unrelated crimes violates neither the State Constitution nor the ethical principles that concerned us in our prior right to counsel cases (see, People v Krom, 61 NY2d 187, 197-198, supra; People v Skinner, 52 NY2d 24, 29-30, supra; People v Hobson, 39 NY2d 479, 484485, supra; People v Taylor, 27 NY2d 327, supra). The Constitution relates the right to counsel in criminal proceedings to that applying in civil actions (see, NY Const, art I, § 6), but in a civil case an attorney representing a party is not precluded by the disciplinary rule from speaking to an adverse party on an unrelated matter for which the party does not have representation and there is no ethical reason why law enforcement officers should be foreclosed from doing so in a criminal case.

As noted at the outset of this opinion, our right to counsel rules are based on "common sense and fairness” and are intended to "[breathe] life into the requirement that the waiver of a constitutional right [is] competent, intelligent and voluntary” (see, People v Hobson, 39 NY2d, supra, at 484). But there is little to be said for a rule which is not firmly grounded on prior case law, cannot be applied uniformly, favors recidivists over first-time arrestees, and exacts such a heavy cost from the public. We conclude that People v Bartolomeo should be overruled.

We emphasize in closing that although Rogers and Bartolomeo are frequently linked in legal literature and Rogers was the only case cited to support the new rule adopted in Bartolomeo, the two holdings are quite different. In People v Rogers (supra), the right to counsel had been invoked on the charges on which defendant was taken into custody and he and his counsel clearly asserted it. To protect his rights, we established a bright-line rule preventing the police from questioning defendant about those charges or any other charges. In People v Bartolomeo (supra), however, defendant was taken into custody for questioning on a new, unrelated charge. He was not represented on that charge and freely waived his right to counsel. Since the right to counsel is personal and may be waived by a defendant (see, People v Davis, supra), the court had to create an indelible right, a right that defendant could not waive in the absence of counsel, to justify suppression of the voluntary statement. It did so by implying a derivative right arising from the prior pending charges (see, People v Robles, 72 NY2d 689, 698, supra). We find the Bartolomeo rule unworkable, and therefore overrule it, but our decision today should not be understood as retreating from the stated holding of Rogers.

Turning to the disposition of these matters, the courts below found that each defendant had knowingly and voluntarily waived their Miranda rights and that the police questioned solely on matters unrelated to the prior pending charge. In the absence of a Bartolomeo right, the procedural question raised in People v Medina becomes moot.

Accordingly, the orders of the Appellate Division in People v Bing and People v Medina should be affirmed. The order of the Appellate Division in People v Cawley should be reversed, and defendant’s motion to suppress denied.

Kaye, J.

(concurring as to result in Bing and Medina, and dissenting as to Cawley). Over the past several decades, this court applying the New York State Constitution evolved a body of law that "constitute^] the strongest protection of right to counsel anywhere in the country.” (Galie, The Other Supreme Courts: Judicial Activism Among State Supreme Courts, 33 Syracuse L Rev 731, 764 [1982]; see also, Galie, State Constitutional Guarantees and the Protection of Defendants’ Rights: The Case of New York, 1960-1978, 28 Buffalo L Rev 157, 178-186 [1979].) Our law in this area was neither the full-blown creation of a contemporary court nor a reaction to perceived Supreme Court retrenchments (see, Bonventre, State Constitutionalism in New York: A Non-Reactive Tradition, 2 Emerging Issues in St Const L 31, 45-49 [1989]). Rather, it was a product of the careful, considered implementation of three guarantees of our State Constitution — due process, the privilege against self-incrimination, and the right to assistance of counsel — which proceeded despite individual changes in the composition of the court.

That jurisprudence had at its core the perception that in criminal cases — wholly unlike civil cases — "the presence of an attorney is the most effective means we have of minimizing the disadvantage at which an accused is placed when * * * directly confronted with the awesome law enforcement machinery possessed by the State.” (People v Cunningham, 49 NY2d 203, 207.) We time and again restated that principle as well as our view that the right to counsel is a jealously guarded, cherished principle, so fundamental that the highest degree of vigilance would be exercised in its defense (see, e.g., People v Cunningham, id.; People v Hawkins, 55 NY2d 474, 483-484; People v Rogers, 48 NY2d 167, 170; People v Settles, 46 NY2d 154, 160; People v Blake, 35 NY2d 331, 335-336).

Today, however, the court breaks with its proud tradition, overruling People v Bartolomeo (53 NY2d 225) and equating legal representation in civil and criminal cases. Because we believe that Bartolomeo, properly understood and applied, protects defendants’ constitutional interests as we have to date understood them, and because we believe the extraordinary step of overruling that case is not compelled in the cases before us and ill advised, we dissent as to that core holding.

I.

The court’s opinion portrays Bartolomeo as an aberrant decision not worthy of precedential respect, a decision without a principled basis or even a rationale until it was invested with one seven years later. We profoundly disagree.

Bartolomeo did not appear out of the blue. It was an integral part of one line of our right-to-counsel cases — beginning with People v Donovan (13 NY2d 148), People v Arthur (22 NY2d 325) and People v Hobson (39 NY2d 479) — that secured the integrity of statements elicited during custodial interrogation, by providing that defendants could waive their right to counsel only in the presence of counsel. The principle was established, and fortified, by a succession of full, reasoned opinions of the court weighing the interests of both defendants and law enforcement.

As the court consistently made clear, that line of cases is premised on a concept of fundamental fairness, particularly the view that in custodial settings an attorney’s presence is the most effective means of minimizing the inherent imbalance and disadvantage faced by an accused subject to the coercive power of the State (see, e.g., People v Skinner, 52 NY2d 24, 29-30; People v Cunningham, 49 NY2d, at 207-209; People v Hobson, 39 NY2d, at 484-485; People v Donovan, 13 NY2d, at 151-152). Without "the advice of an attorney, the average person, unschooled in legal intricacies, might very well unwittingly surrender * * * right[s] when confronted with the coercive power of the State and its agents” (People v Settles, 46 NY2d, at 161), and there is significant risk of inaccurate, false and incomplete descriptions of the events described (People v Hobson, 39 NY2d, at 485). By requiring the presence of an attorney, the court ensured that the "waiver of a constitutional right [is] competent, intelligent and voluntary.” (Id., at 484.) .

The requirement of counsel for a waiver of a defendant’s right to counsel was not, however, absolute. Law enforcement authorities were permitted to question even counseled defendants on "unrelated” charges without a lawyer — much as is allowed in civil cases. In People v Taylor (27 NY2d 327), for example, the court held that where defendants represented on robbery charges were interrogated about a murder, their statements would not be suppressed because the representation related only to the robbery, not murder.

The "unrelated” charge exception, as rapidly became obvious, left significant room for subversion of the right-to-counsel rules (see, People v Marshall, 98 AD2d 452, 458-459; People v Whitaker, 75 AD2d 111, 115-117; Lewin, Criminal Law and Procedure, 1981 Survey of New York Law, 32 Syracuse L Rev 223, 257-258 [1981]; Note, The Expanding Right to Counsel in New York, 10 Fordham Urban U 351, 359-360 [1982]). Although the majority opinion states that the "courts are fully capable of protecting the defendants’ rights on both the prior pending charges and the new charges” (majority opn, at 349), our experience proved otherwise. As we only recently wrote: "The Taylor exception * * * proved difficult to apply and was soon riddled with its own exceptions.” (People v Robles, 72 NY2d 689, 696.)

The point was exemplified by several cases (see, e.g., People v Ermo, 47 NY2d 863; People v Carl, 46 NY2d 806; People v Ramos, 40 NY2d 610) indicating that, in order for the counsel rules to be "accorded the highest degree of respect by those representing the State,” the "unrelated” charge exception had to be modified. (People v Rogers, 48 NY2d 167, 170, supra; see, People v Hauswirth, 60 NY2d 904, affg for reasons stated at 89 AD2d 357; People v Margolies, 125 Misc 2d 1033, 1044.)

People v Rogers occasioned that necessary change in the law. In Rogers, defendant’s attorney instructed the police to cease questioning defendant (a youth of limited education who was a robbery suspect), and the police complied — as to the robbery charges. But they simply shifted the subject and continued interrogating defendant, alone and manacled, for several hours, until he made a statement. Invoking Taylor, the People defended their right to do exactly that. But this court determined to call a halt to the facile evasion of defendants’ constitutional rights, and declared "once a defendant is represented by an attorney, the police may not elicit from him any statements, except those necessary for processing or his physical needs. Nor may they seek a waiver of this right, except in the presence of counsel.” (48 NY2d, at 173.)

Those conclusions rested on two key observations about the attorney-client relationship. First, as the court noted, even as to charges unrelated to the subject of an existing representation, the attorney naturally would not abandon the client. And second, it "is the role of defendant’s attorney, not the State, to determine whether a particular matter will or will not touch upon the extant charge.” (Id.) Rogers established that the "relatedness” of pending charges, henceforth, would be determined not by law enforcement authorities, or even by courts, but by the attorneys who were actually representing the defendants.

People v Bartolomeo was an outgrowth and application of those principles. As in Rogers, the court confronted what was perceived as a means of circumventing defendant’s constitutional rights through questioning on "unrelated” matters. Bartolomeo himself, then 19 years old, had been arrested by Suffolk County police on burglary and arson charges, arraigned (with counsel) and released, and then nine days later again arrested by Suffolk County police for homicide. Although well aware of the arson/burglary investigation, the police interrogated defendant and secured inculpatory statements from him, until his lawyer on the other charges called and stopped the questioning.

On defendant’s appeal from his conviction, the main thrust of the People’s argument in this court was not that counsel in Rogers had been retained on the charge for which defendant was then in custody, while the counseled matter in Bartolomeo was an "unrelated” prior charge. In other cases, the Appellate Divisions had already applied the Rogers rule in both contexts (see, e.g., People v Outlaw, 81 AD2d 796; People v Pitt, 80 AD2d 864; People v Butler, 80 AD2d 644; People v Catalano, 80 AD2d 587; People v Miller, 76 AD2d 576, affd 54 NY2d 616). That application followed logically from Rogers’ two key assumptions: the attorney on the pending charges (arson/burglary) would not have abandoned his client on new charges (murder), and it was for defense counsel, not the State, to determine whether or not the two matters were in fact "unrelated.” Indeed, this court in People v Albro (52 NY2d 619, 624) — even before Bartolomeo — took note of the Appellate Division ruling that Rogers "precludes custodial questioning of a defendant in the absence of an attorney where the defendant is actually represented on unrelated charges.”

What was more novel about Bartolomeo — and the principal point of the People’s argument — was that Rogers should be distinguished on the ground that the police had actual knowledge of the existence of the unrelated charges, but did not have actual knowledge of defendant’s representation on those charges. We rejected that argument because of the factual circumstances presented. Defendant’s arrest only nine days earlier by members of the same police department gave rise to a duty to inquire as to the presence of counsel, and the police would be charged with the knowledge that inquiry would have revealed (see also, People v Smith, 54 NY2d 954, 956 [police charged with duty to inquire where they in fact "assumed that defendant had an attorney” on earlier charges]).

That obligation is not imposed, however, where police could not reasonably be charged with knowledge that defendant had a lawyer on the unrelated matter (see, e.g., People v Lucarano, 61 NY2d 138 [no obligation where defendant denied representation]; People v Johnson, 61 NY2d 932 [no evidence indicating that police had knowledge of the prior criminal proceeding]; People v Fuschino, 59 NY2d 91 [same]; People v Servidlo, 54 NY2d 951 [police not charged with duty to investigate when unaware that defendant had minor unrelated charges pending against him]; People v Kazmarick, 52 NY2d 322 [defendant was not represented by counsel on unrelated charge]). Subsequent cases have made crystal-clear just how narrow the Bartolomeo rule is: as in Rogers, where law enforcement officers necessarily know that a defendant in custody is represented by counsel on pending New York criminal charges, it is impermissible to question the individual in the absence of counsel (see, e.g., People v Robles, 72 NY2d 689, supra; People v Colwell, 65 NY2d 883; People v Lucarano, 61 NY2d 138, supra), the assumption being that the lawyer once engaged will not abandon the client and can best determine what is indeed "unrelated” to the subject of the representation.

Thus, there is in fact no mystery about the so-called rRogers-Bartolomeo” rule, and no question as to its rationale or its fit in our jurisprudence. The suggestions in the majority opinion that Bartolomeo was an aberrant decision without rationale or principle to support it are simply without basis.

II.

The court concludes that it now must overrule Bartolomeo because it is unworkable, and because the three appeals before us cannot be sensibly resolved without undercutting any basis or rationale Bartolomeo may have. Not so.

People v Bing and People v Medina

By any reasonable application of the law by those seeking to implement rather than overrule Bartolomeo, both Bing and Medina fall outside its reach.

Bing is a case that is factually far afield from Bartolomeo. In Bing, a Nassau County detective investigating a robbery learned from a known informant that defendant had recently come from Ohio, where he was "hot.” The detective confirmed by teletype that there was an outstanding "burglary warrant” in Ohio but made no inquiry as to defendant’s representation on the charge before picking him up; defendant almost immediately said he was willing to talk without a lawyer and confessed to the robbery. Both the trial court and the Appellate Division had no difficulty denying suppression of defendant’s statements, concluding that this case was significantly different from Bartolomeo and should be resolved in accordance with precedent and common sense by not extending Bartolomeo (see, 146 AD2d 178; 131 Misc 2d 62; see also, Survey of New York Practice, Developments in the Law, 64 St John’s L Rev 197 [1989] [discussing Bing]; Abramovsky, The Rogers-Bartolomeo Rule, NYU, May 1, 1989, at 3, col 3 [same]).

The majority opinion itself posits the absurdity of extending Bartolomeo to these facts: "Not only may communications between law enforcement agencies be difficult but substantive and procedural law may vary from State to State and present special difficulties for the New York police. Moreover, if an Ohio charge may serve as a predicate for a derivative right to counsel, so may a pending charge in Timbuktu, thereby compounding the problem.” (Majority opn, at 347.)

Nothing in the law forces the dismal choice on us of either carrying one of our holdings to its most ludicrous outer limits or scrapping it.

To the contrary, when the facts of new cases are significantly different from prior precedents, requiring an extension of the law, courts traditionally refine their holdings by balancing the competing considerations and deciding whether to enlarge the precedent or not. There is simply no reason to ignore that time-honored process in this case. While it is invariably possible to question why lines are drawn at one place and not another — why include Buffalo and not Bangkok? —in this case there are perfectly good reasons for refusing to extend Bartolomeo beyond New York State borders.

As is immediately apparent, the addition of another State to the mix of facts adds a new ingredient with both practical and policy implications. Where the prior matter is proceeding in New York State, such key questions as whether, and when, there is actually a "pending charge” for right-to-counsel purposes can be readily answered; as the majority opinion points out, the legal effect of an arrest warrant, even a "burglary warrant,” in another State may vary from State to State and be harder to determine. Then too, there may be difficulty when the presence of an attorney from another State, conceivably even another Nation, is required in order to effect any waiver of defendant’s right to counsel in the New York matter —if that is what defendant wishes to do. In this same vein, both the trial court and the Appellate Division voiced concern about a rule that would draw nonadmitted attorneys into practice in New York State.

To be weighed against the potential new difficulties presented are the objectives and policy interests at stake. Turning first to the interest protected — "the attorney-client relationship that existed with respect to the pending charges,” or the "full-fledged right to counsel in the pending proceeding” (People v Robles, 72 NY2d, at 697, 698) — that interest is obviously different when the earlier charges are pending in another State. That State may or may not place the same value as New York on defendant’s right to counsel; most do not. Even if defendant’s statements are not suppressed in New York, other States that do share our concern for the right to counsel still can safeguard the right by suppressing, in their own proceedings, any pertinent uncounseled statements that defendant may have made in New York. That may not be as good a solution as we are able to effectuate within our own State, but the circumstances are different. There is not the same benefit to be had in suppressing statements and overturning convictions in New York prosecutions in the interest of protecting attorney-client relationships in other States.

The Bartolomeo rule additionally serves the New York State interest of preserving the attorney-client relationship by deterring uncounseled interrogation on unrelated charges. A bright-line rule leaves for the attorney — rather than the police —the determination whether a particular matter will or will not touch upon the extant charge (People v Rogers, 48 NY2d, at 173; People v Robles, 72 NY2d, at 697). But when the prior matter is pending in another State, New York authorities generally should not have the same incentive for interrogation on that matter. By the same token, the geographical difference creates a natural separation that makes inadvertent questioning on the out-of-State charge less likely. Thus, the questionable benefit to be gained from extending the Bartolomeo rule beyond State borders would not justify the New York price it would command, and we would not do so.

We therefore cannot agree with the majority that Bing, sensibly decided, strikes at the substance of Bartolomeo, or undermines the rule, or in any way demonstrates the rule is unworkable. As the two courts prior to ours recognized, Bartolomeo as presently formulated is inapplicable to Bing, and it should not be extended globally.

Medina is the only case of the three in which the District Attorney demands Bartolomeo be overruled. Yet, as even the majority opinion recognizes, this case is resolved simply on the basis of undisturbed factual findings (majority opn, at 346). There is surely no need to overturn an important precedent because of Medina.

Medina is a straightforward application of the rule that a confession elicited from a suspect represented by counsel on unrelated charges will not be excluded if the police reasonably believe those charges are no longer pending, and they do not act in bad faith (People v Bertolo, 65 NY2d 111, 120-121). Reasonableness and bad faith — we have said on countless occasions — are usually mixed questions of law and fact (see, e.g., People v Harrison, 57 NY2d 470, 477; People v McRay, 51 NY2d 594, 601). In Medina, there are undisturbed findings, supported by the record, that the State Police acted reasonably and not in bad faith. Ordinarily, the court would simply have held the suppression issue was beyond the review powers of this court.

Medina, on any other day, would simply have been affirmed in a brief memorandum. Surely, Medina offers no reason to overrule Bartolomeo.

People v Cawley

Nor does Cawley. But Cawley presents a problem of a different order. Defendant there was represented by counsel on robbery charges, but absconded and remained a fugitive for close to six months, until he was returned to the State on a bench warrant. The People, as appellant, ask us to consider whether an outstanding bench warrant should be treated as a pending unrelated charge within the meaning of Rogers; they portray this as an unresolved question of law, which the court avoids by overruling Bartolomeo. Were that question answered in the affirmative, we would agree that any inquiry into the substantiality of defendant’s relationship with his lawyer would be inappropriate, and suppression would be required — a regrettable result on these facts.

What the court neglects to mention, however, is that the regrettable result in Cawley is not attributable to any defect in the Bartolomeo rule. It is instead attributable to the zeal of the police in singlemindedly pursuing the interrogation of defendant without counsel until he confessed, although they were specifically told not to continue the inquiry or they would imperil a homicide investigation. As recited by the Trial Judge in his decision, the police were so advised by the A.D.A.; they then consulted her supervisor and bureau chief, who confirmed that advice; again dissatisfied, they sought counsel from the head of the trial bureau, who repeated the admonition. In the words of the Trial Judge: "For a lieutenant in charge of the Manhattan South Homicide Task Force to behave as this lieutenant behaved, it seems to me should be brought to the attention of his superior officers. Some action should be taken so that homicide matters in the future will not be compromised in the way that this one has become as a result of his failure to perform responsibly.” We therefore cannot agree with the court that Cawley demonstrates the unworkability of Bartolomeo. None of our rules work when they are deliberately ignored.

Thus, these three cases, sensibly decided, threaten neither the integrity of Bartolomeo nor our right to counsel rules generally; they do not show that Bartolomeo is unworkable; and they are not cause for the extraordinary action of overruling that recent precedent.

III.

In the end, our difference boils down to the majority’s insistence that Bartolomeo cannot be justified as a matter of policy, that the rule is unreasonable, and that it imposes an unacceptable burden on law enforcement agencies.

Those might well have been compelling considerations in deciding Bartolomeo — indeed, those very arguments were made in the dissenting opinions in both Rogers and Bartolomeo. Even the criticism of this line of right-to-counsel cases by other jurisdictions and commentators was known at the time of Bartolomeo. The court held, however, that the Bartolomeo rule was justified as a matter of policy, that it was reasonable, and that it did not impose an unacceptable burden on law enforcement agencies. That there are now four votes for those same rejected policy considerations is, of course, not a valid reason to overrule the case (see, Wachtler, Stare Decisis and a Changing New York Court of Appeals, 59 St John’s L Rev 445 [1985]). "The ultimate principle is that a court is an institution and not merely a collection of individuals; just as a higher court commands superiority over a lower not because it is wiser or better but because it is institutionally higher. This is what is meant, in part, as the rule of law and not of men.” (People v Hobson, 39 NY2d, at 491.)

Nor does the recurrence of "Bartolomeo issues” over the past nine years signal the need for its reexamination or demise. We have had far greater difficulty with other recurring issues that remain part of our law. To some extent, moreover, the constant testing and retesting of recent precedents is a natural and welcome part of the judicial process. As appellants press for further applications and enlargements of newly articulated principles and respondents oppose them, our rules are tailored, refined and fitted into the law.

In this instance, in particular, the Rogers-Bartolomeo "sequels” have been helpful in molding the principles to effect their substance while avoiding absurd applications. In setting rules in this area, the court has always been mindful of the cost to law enforcement and, from People v Servidio (54 NY2d 951, supra) through People v Robles (72 NY2d 689, supra), the cases have enabled us to confine the Rogers-Bartolomeo principle beyond a shadow of a doubt to its essence and intended purposes — i.e., to instances where the police are necessarily aware that a defendant under custodial interrogation without a lawyer is represented by counsel on the existing or other pending charges. Until today, we have seen no "destabilization” in this body of law; during the nine-year life of Bartolomeo we have not been pressed to overrule the holding; nor have we encountered expressions of frustration or exasperation with an unworkable rule in the innumerable trial and intermediate appellate court decisions we have seen since Bartolomeo. Indeed, in the three cases before us, in every instance the rule has been correctly applied by both the trial courts and the Appellate Divisions.

What does without question destabilize the law is the overruling of a significant recent precedent, by now fully a part of the law (see, e.g., People v Johnson, 89 AD2d 812, 813 [describing the Bartolomeo rule as "well settled”]; Richardson, Evidence § 545, at 253-257 [1985 Supp]; Jakala & Phalen, Crim Proc NY Pt 1 § 34.10, 33-36 [3d ed]). The Rogers-Bartolomeo rule is applied daily in courts throughout the State and familiar to law enforcement authorities, who presumably conduct their custodial examinations of defendants with due respect for the rights defined by those cases. Apart from the direct impact of overruling Bartolomeo, there is additionally a natural fear for its immediate family, most particularly Rogers. The court recognizes this, and hastens to offer explicit reassurance that today’s decision signals no retreat from Rogers (majority opn, at 350). That is no idle gesture, for the principle at stake is widely known as "the Rogers-Bartolomeo rule.” We call it that ourselves (see, e.g., People v Bertolo, 65 NY2d, at 116, 117).

Without in any way entering the current raging debate on the subject of stare decisis in constitutional decisionmaking (see, e.g., Monaghan, Stare Decisis and Constitutional Adjudication, 88 Colum L Rev 723 [1988]; Note, Constitutional Stare Decisis, 103 Harv L Rev 1344 [1990]), it is safe to say that this court in the past had placed a high value on adherence to the doctrine of stare decisis. Not often in our history have we explicitly overruled a recent precedent, and rarely if ever have we done so by a closely divided court. Perhaps even more disturbing than the extraordinary step of overturning Bartolomeo — wrong and unnecessary as it is to do so — is that it cannot help but unsettle the belief "that bedrock principles are founded in the law rather than in the proclivities of individuals.” (Vasquez v Hillery, 474 US 254, 265.)

We would affirm the Appellate Division orders in all three cases.

In People v Bing and People v Medina: Order affirmed.

Chief Judge Wachtler and Judges Hancock, Jr., and Bellacosa concur with Judge Simons; Judge Kaye concurs in result in a separate opinion in which Judges Alexander and Titone concur.

In People v Cawley: Order reversed, etc.

Chief Judge Wachtler and Judges Hancock, Jr., and Bell-

acosa concur with Judge Simons; Judge Kaye dissents and votes to affirm in a separate opinion in which Judges Alexander and Titone concur.

      . New York Constitution, art I, § 6 provides: "In any trial in any court whatever the party accused shall be allowed to appear and defend in person and with counsel as in civil actions and shall be informed of the nature and cause of the accusation and be confronted with the witnesses against him.”

      . Several State courts have been asked specifically to apply People v Bartolomeo and each has refused to do so (see, e.g., Commonwealth v Yarris, 519 Pa 571, 549 A2d 513, 524-525 ["emphatically” declining to adopt the Bartolomeo rule]; State v Porter, 210 NJ Super 383, 510 A2d 49, 54; State v Ture, 353 NW2d 502, 511 [Minn]; State v Wolf, 7 Kan App 2d 398, 643 P2d 1101, 1104-1105; Krier v State, 249 Ga 80, 91-92, 287 SE2d 531; State v

        Claboume, 142 Ariz 335, 690 P2d 54, 60-61; State v Seward, 104 NM 548, 724 P2d 756, 762). The United States Supreme Court rejected similar arguments when interpreting the Sixth and Fourteenth Amendments (see, Maine v Moulton, 474 US 159; Moran v Burbine, 475 US 412).

      . According to a 1979 survey of New York County Supreme Court and Criminal Court, the percent of defendants with open cases pending at the time of arrest was 60% in Supreme Court and 57% in Criminal Court (see, Report of District Attorney, County of New York, Robert Morgenthau, District Attorney, Table 1, at 10 [1979], as quoted in Note, The Expanding Right to Counsel in New York, 10 Fordham Urban U 351, 369, n 90). Seventy-seven percent of the District Attorney’s sample of 200 arrestees in Supreme Court had prior arrests. On the average they had been arrested eight times before (see, id., at 372, n 105).


source: Caselaw Access Project

author: Kaye, J. Bellacosa, J.

license: Public Domain

text:
    Thomas Niesig, Appellant, v Team I et al., Defendants-Respondents and Third-Party Plaintiffs-Respondents. DeTrae Enterprises, Inc., Third-Party Defendant-Respondent.
    Argued May 31, 1990;
    decided July 5, 1990

      POINTS OF COUNSEL

      Emily M. Bass and Monique Y. Patterson for appellant.

      Frederick B. Simpson for J.M. Frederick Construction of New York, Inc., defendant-respondent and third-party plaintiff-respondent.

      Patrick J. Crowe for third-party defendant-respondent.

      Janice Goodman, Audrey S. Feinberg and Rent Hirozawa for the Committee on Civil Rights of the Association of the Bar of the City of New York, amicus curiae.

      Miriam F. Clark, Lewis M. Steel, Julius Levonne Chambers, Charles Steven Ralston, Ronald L. Ellis, Vanessa Merton and Kim Gandy for NAACP Legal Defense & Educational Fund, Inc., and others, amici curiae.

      James R. Sandner, James D. Bilik and Claude I. Hersh for New York State United Teachers, amicus curiae.

      Robert Abrams, Attorney-General (Peter G. Crary, O. Peter Sherwood and Peter H. Schiff of counsel), amicus curiae, pro se.

      Nancy E. Hoffman, William A. Herbert, Robert Perez-Wilson, Leonard D. Polletta and Robert A. Martin for the Civil Service Employees Association, Inc., and another, amici curiae.

   OPINION OF THE COURT

Kaye, J.

Plaintiff in this personal injury litigation, wishing to have his counsel privately interview a corporate defendant’s employees who witnessed the accident, puts before us a question that has generated wide interest: are the employees of a corporate party also considered "parties” under Disciplinary Rule 7-104 (A) (1) of the Code of Professional Responsibility, which prohibits a lawyer from communicating directly with a "party” known to have counsel in the matter? The trial court and the Appellate Division both answered that an employee of a counseled corporate party in litigation is by definition also a "party” within the rule, and prohibited the interviews. For reasons of policy, we disagree.

As alleged in the complaint, plaintiff was injured when he fell from scaffolding at a building construction site. At the time of the accident he was employed by DeTrae Enterprises, Inc.; defendant J.M. Frederick was the general contractor, and defendant Team I the property owner. Plaintiff thereafter commenced a damages action against defendants, asserting two causes of action centering on Labor Law § 240, and defendants brought a third-party action against DeTrae.

Plaintiff moved for permission to have his counsel conduct ex parte interviews of all DeTrae employees who were on the site at the time of the accident, arguing that these witnesses to the event were neither managerial nor controlling employees and could not therefore be considered "personal synonyms for DeTrae.” DeTrae opposed the application, asserting that the disciplinary rule barred unapproved contact by plaintiff’s lawyer with any of its employees. Supreme Court denied plaintiff’s request, and the Appellate Division modified by limiting the ban to DeTrae’s current employees.

The Appellate Division concluded, for theoretical as well as practical reasons, that current employees of a corporate defendant in litigation "are presumptively within the scope of the representation afforded by the attorneys who appeared [in the litigation] on behalf of that corporation.” (149 AD2d 94, 95.) Citing Upjohn Co. v United States (449 US 383), the court held that DeTrae’s attorneys have an attorney-client relationship with every DeTrae employee connected with the subject of the litigation, and that the prohibition is necessitated by the practical difficulties of distinguishing between a corporation’s control group and its other employees. The court further noted that the information sought from employee witnesses could instead be obtained through their depositions.

In the main we disagree with the Appellate Division’s conclusions. However, because we agree with the holding that DR 7-104 (A) (1) applies only to current employees, not to former employees, we modify rather than reverse its order, and grant plaintiff’s motion to allow the interviews.

We begin our analysis by noting that what is at issue is a disciplinary rule, not a statute. In interpreting statutes, which are the enactments of a coequal branch of government and an expression of the public policy of this State, we are of course bound to implement the will of the Legislature; statutes are to be applied as they are written or interpreted to effectuate the legislative intention. The disciplinary rules have a different provenance and purpose. Approved by the New York State Bar Association and then enacted by the Appellate Divisions, the Code of Professional Responsibility is essentially the legal profession’s document of self-governance, embodying principles of ethical conduct for attorneys as well as rules for professional discipline (see, Code of Professional Responsibility, Preliminary Statement, McKinney’s Cons Law of NY, Book 29, at 355). While unquestionably important, and respected by the courts, the code does not have the force of law (see, Matter of Weinstock, 40 NY2d 1, 6).

That distinction is particularly significant when a disciplinary rule is invoked in litigation, which in addition to matters of professional conduct by attorneys, implicates the interests of nonlawyers (see, S & S Hotel Ventures Ltd. Partnership v 777 S. H. Corp., 69 NY2d 437, 443). In such instances, we are not constrained to read the rules literally or effectuate the intent of the drafters, but look to the rules as guidelines to be applied with due regard for the broad range of interests at stake. " 'When we agree that the Code applies in an equitable manner to a matter before us, we should not hesitate to enforce it with vigor. When we find an area of uncertainty, however, we must use our judicial process to make our own decision in the interests of justice to all concerned.’ ” (Id. [quoting Foley & Co. v Vanderbilt, 523 F2d 1357, 1360 (2d Cir, Gurfein, J., concurring)].)

DR 7-104 (A) (1), which can be traced to the American Bar Association Canons of 1908, fundamentally embodies principles of fairness. "The general thrust of the rule is to prevent situations in which a represented party may be taken advantage of by adverse counsel; the presence of the party’s attorney theoretically neutralizes the contact.” (Wright v Group Health Hosp., 103 Wash 2d 192, 197, 691 P2d 564, 567.) By preventing lawyers from deliberately dodging adversary counsel to reach — and exploit — the client alone, DR 7-104 (A) (1) safeguards against clients making improvident settlements, ill-advised disclosures and unwarranted concessions (see, 1 Hazard & Hodes, Lawyering, at 434-435 [1989 Supp]; Wolfram, Modern Legal Ethics § 11.6, at 613 [Practitioner’s ed 1986]; Leubsdorf, Communicating with Another Lawyer’s Client: The Lawyer’s Veto and the Client’s Interests, 127 U Pa L Rev 683, 686 [1979]).

There is little problem applying DR 7-104 (A) (1) to individuals in civil cases. In that context, the meaning of "party” is ordinarily plain enough: it refers to the individuals, not to their agents and employees (see, Gillers & Dorsen, Regulation of Lawyers: Problems of Law and Ethics, at 433 [2d ed 1989]). The question, however, becomes more difficult when the parties are corporations — as evidenced by a wealth of commentary, and controversy, on the issue (see, e.g., Wyeth, Talking to the Other Side’s Employees and Ex-Employees, 15 Litigation 8 [No. 4 Summer 1989]; Cpmment, Ex Parte Communications with Corporate Parties: The Scope of the Limitations on Attorney Communications with One of Adverse Interest, 82 Nw U L Rev 1274 [1988]; Miller & Calfo, Ex Parte Contact with Employees and Former Employees of a Corporate Adversary: Is it Ethical?, 42 Bus Law 1053 [1987]; Stahl, Ex Parte Interviews with Enterprise Employees: A Post-Upjohn Analysis, 44 Wash & Lee L Rev 1181 [1987]; American Bar Foundation Annotated Code of Professional Responsibility 336-337 [1979]; Kurlantzik, The Prohibition on Communication with an Adverse Party, 51 Conn BJ 136 [1977]).

The difficulty is not in whether DR 7-104 (A) (1) applies to corporations. It unquestionably covers corporate parties, who are as much served by the rule’s fundamental principles of fairness as individual parties. But the rule does not define "party,” and its reach in this context is unclear. In litigation only the entity, not its employee, is the actual named party; on the other hand, corporations act solely through natural persons, and unless some employees are also considered parties, corporations are effectively read out of the rule. The issue therefore distills to which corporate employees should be deemed parties for purposes of DR 7-104 (A) (1), and that choice is one of policy. The broader the definition of "party” in the interests of fairness to the corporation, the greater the cost in terms of foreclosing vital informal access to facts.

The many courts, bar associations and commentators that have balanced the competing considerations have evolved various tests, each claiming some adherents, each with some imperfection (see generally, Annotation, Right of Attorney to Conduct Ex Parte Interviews with Corporate Party’s Nonmanagement Employees, 50 ALR4th 652 [1986] [collecting cases]). At one extreme is the blanket rule adopted by the Appellate Division and urged by defendants, and at the other is the "control group” test — both of which we reject. The first is too broad and the second too narrow.

Defendants’ principal argument for the blanket rule — correlating the corporate "party” and all of its employees — rests on Upjohn v United States (449 US 383, supra). As the Supreme Court recognized, a corporation’s attorney-client privilege includes communications with low- and mid-level employees; defendants argue that the existence of an attorney-client privilege also signifies an attorney-client relationship for purposes of DR 7-104 (A) (1).

Upjohn, however, addresses an entirely different subject, with policy objectives that have little relation to the question whether a corporate employee should be considered a "party” for purposes of the disciplinary rule. First, the privilege applies only to confidential communications with counsel (see, CPLR 4503), it does not immunize the underlying factual information — which is in issue here — from disclosure to an adversary (see also, Upjohn v United States, 449 US, at 395-396, supra). Second, the attorney-client privilege serves the societal objective of encouraging open communication between client , and counsel (see, Rossi v Blue Cross & Blue Shield, 73 NY2d 588, 592), a benefit not present in denying informal access to factual information. Thus, a corporate employee who may be a "client” for purposes of the attorney-client privilege is not necessarily a "party” for purposes of DR 7-104 (A) (1).

The single indisputable advantage of a blanket preclusion— as with every absolute rule — is that it is clear. No lawyer need ever risk disqualification or discipline because of uncertainty as to which employees are covered by the rule and which not. The problem, however, is that a ban of this nature exacts a high price in terms of other values, and is unnecessary to achieve the objectives of DR 7-104 (A) (1).

Most significantly, the Appellate Division’s blanket rule closes off avenues of informal discovery of information that may serve both the litigants and the entire justice system by uncovering relevant facts, thus promoting the expeditious resolution of disputes. Foreclosing all direct, informal interviews of employees of the corporate party unnecessarily sacrifices the long-recognized potential value of such sessions. "A lawyer talks to a witness to ascertain what, if any, information the witness may have relevant to his theory of the case, and to explore the witness’ knowledge, memory and opinion— frequently in light of information counsel may have developed from other sources. This is part of an attorney’s so-called work product.” (International Business Machs. Corp. v Edelstein, 526 F2d 37, 41 [citing Hickman v Taylor, 329 US 495].) Costly formal depositions that may deter litigants with limited resources, or even somewhat less formal and costly interviews attended by adversary counsel, are no substitute for such off-the-record private efforts to learn and assemble, rather than perpetuate, information.

Nor, in our view, is it necessary to shield all employees from informal interviews in order to safeguard the corporation’s interest. Informal encounters between a lawyer and an employee-witness are not — as a blanket ban assumes — invariably calculated to elicit unwitting admissions; they serve long-recognized values in the litigation process. Moreover, the corporate party has significant protection at hand. It has possession of its own information and unique access to its documents and employees; the corporation’s lawyer thus has the earliest and best opportunity to gather the facts, to elicit information from employees, and to counsel and prepare them so that they will not make the feared improvident disclosures that engendered the rule.

We fully recognize that, as the Appellate Division observed, every rule short of the absolute poses practical difficulties as to where to draw the line, and leaves some uncertainty as to which employees fall on either side of it. Nonetheless, we conclude that the values served by permitting access to relevant information require that an effort be made to strike a balance, and that uncertainty can be minimized if not eliminated by a clear test that will become even clearer in practice.

We are not persuaded, however, that the "control group” test — defining "party” to include only the most senior management exercising substantial control over the corporation— achieves that goal. Unquestionably, that narrow (though still uncertain) definition of corporate "party” better serves the policy of promoting open access to relevant information. But that test gives insufficient regard to the principles motivating DR 7-104 (A) (1), and wholly overlooks the fact that corporate employees other than senior management also can bind the corporation. The "control group” test all but "nullifies the benefits of the disciplinary rule to corporations.” (Comment, Ex Parte Communications with Corporate Parties: The Scope of the Limitations on Attorney Communications with One of Adverse Interest, 82 Nw U L Rev 1274, 1288 [1988]; see also, Morrison v Brandeis Univ., 125 FRD 14, 16-17 [D Mass]; Massa v Eaton Corp., 109 FRD 312, 313-314 [WD Mich].) Given the practical and theoretical problems posed by the "control group” test, it is hardly surprising that few courts or bar associations have ever embraced it.

By the same token, we find unsatisfactory several of the proposed intermediate tests, because they give too little guidance, or otherwise seem unworkable. In this category are the case-by-case balancing test (see, B. H. v Johnson, 128 FRD 659 [ND 111]; Morrison v Brandeis Univ., supra), and a test that defines "party” to mean corporate employees only when they are interviewed about matters within the scope of their employment (Committee on Professional Ethics, Assn of Bar of City of NY, Opn No. 80-46 [1980]; Committee on Professional Ethics, Massachusetts Bar Assn. Formal Opn No. 82-7 [1982]). The latter approach is based on rule 801 (d) (2) (D) of the Federal Rules of Evidence, a hearsay exception for statements concerning matters within the scope of employment, which is different from the New York State rule (see, Loschiavo v Port Auth., 58 NY2d 1040; Kelly v Diesel Constr. Div., 35 NY2d 1).

The test that best balances the competing interests, and incorporates the most desirable elements of the other approaches, is one that defines "party” to include corporate employees whose acts or omissions in the matter under inquiry are binding on the corporation (in effect, the corporation’s "alter egos”) or imputed to the corporation for purposes of its liability, or employees implementing the advice of counsel. All other employees may be interviewed informally.

Unlike a blanket ban or a "control group” test, this solution is specifically targeted at the problem addressed by DR 7-104 (A) (1). The potential unfair advantage of extracting concessions and admissions from those who will bind the corporation is negated when employees with "speaking authority” for the corporation, and employees who are so closely identified with the interests of the corporate party as to be indistinguishable from it, are deemed "parties” for purposes of DR 7-104 (A) (1). Concern for the protection of the attorney-client privilege prompts us also to include in the definition of "party” the corporate employees responsible for actually effectuating the advice of counsel in the matter (see, Polycast Technology Corp. v Uniroyal, Inc., 129 FRD 621, 625, 628, 629 [SD NY]; 1 Hazard & Hodes, op. cit, at 436-437).

In practical application, the test we adopt thus would prohibit direct communication by adversary counsel "with those officials, but only those, who have the legal power to bind the corporation in the matter or who are responsible for implementing the advice of the corporation’s lawyer, or any member of the organization whose own interests are directly at stake in a representation.” (Wolfram, op. cit, § 11.6, at 613.) This test would permit direct access to all other employees, and specifically — as in the present case — it would clearly permit direct access to employees who were merely witnesses to an event for which the corporate employer is sued.

Apart from striking the correct balance, this test should also become relatively clear in application. It is rooted in developed concepts of the law of evidence and the law of agency, thereby minimizing the uncertainty facing lawyers about to embark on employee interviews. A similar test, moreover, is the one overwhelmingly adopted by courts and bar associations throughout the country, whose long practical experience persuades us that — in day-to-day operation — it is workable.

Finally, we note the particular contribution made by the various amici curiae in this case; by highlighting the diverse contexts in which the question may arise, their submissions have enlarged our comprehension of the broad potential impact of the issue presented. In so doing, however, they have also alerted us to the wisdom of flagging what is in any event implicit in our decisions — that they are limited by the facts before us and the questions put to us. Today’s decision resolves the present controversy by allowing ex parte interviews with nonmanagerial witnesses employed by a corporate defendant; even in that limited context, we recognize that there are undoubtedly questions not raised by the parties that will yet have to be answered. Defendants’ assertions that ex parte interviews should not be permitted because of the dangers of overreaching, moreover, impel us to add the cautionary note that, while we have not been called upon to consider questions relating to the actual conduct of such interviews, it is of course assumed that attorneys would make their identity and interest known to interviewees and comport themselves ethically.

Accordingly, the order of the Appellate Division should be modified, without costs, by reversing so much of the Appellate Division order as denied plaintiff’s motion to permit ex parte interviews of current DeTrae employees and, as so modified, the Appellate Division order should be affirmed and the certified question answered in the negative.

Bellacosa, J.

(concurring). I agree that the Appellate Division blanket test too broadly precluded ex parte interviews by defining the term "parties” as used in Disciplinary Rule 7-104 (A) (1) to include all current employees of a corporate defendant. The court instead adopts an "alter ego” definition which, as I see it, will function almost identically with the rejected test. Also, it sacrifices an unnecessarily disproportionate amount of the truth-discovering desideratum of the litigation process. Lastly, circularity in the identification of and application to the "alter ego” test group may occur, which could prolong pretrial discovery and allow the shield of DR 7-104 (A) (1) to be fashioned into a sword.

These concerns could be avoided by limiting "parties”, for the purposes of this professional responsibility rule, only to those who are in the "control group” of the corporate defendant; that is, only those among "the most senior management who exercise substantial control over the corporation” (see, Comment, Ex Parte Communications with Corporate Parties: The Scope of the Limitations on Attorney Communications with One of Adverse Interest, 82 Nw U L Rev 1274, 1288, n 85).

To be sure, that test is far from perfect itself. But the "control group” definition better balances the respective interests by allowing the maximum number of informal interviews among persons with potentially relevant information, while safeguarding the attorney protections afforded the men and women whose protection may well be of paramount concern— those at the corporate helm and the fictional entity itself, the corporation. Also, this approach is more consistent with the ordinary understanding and meaning of "party”, and more reasonably fits the purpose for which the disciplinary rule exists; a professional responsibility purpose quite distinct from enactments in public law prescribing the rights and protections of parties to litigation.

Discovery of the truth and relevant proofs is the end to which litigation is the means. The fewer parties to whom counsel can informally turn in the quest for facts on behalf of a client’s cause, the more cumbersome becomes the realization of this goal. The Appellate Division’s blanket definition and the "alter ego” test more severely limit access to parties with relevant information than does the control group test which I urge. One commentator has noted, "any rule that limits the attorney’s access to the truth necessarily contravenes a basic aim of our legal system” (Comment, Ex Parte Communications with Corporate Parties: The Scope of the Limitations on Attorney Communications with One of Adverse Interest, 82 Nw U L Rev, at 1279; see also, Leubsdorf, Communicating with Another Lawyer’s Client: The Lawyer’s Veto and the Client’s Interest, 127 Pa L Rev 683, 695, and n 47). Therefore, I believe the cost of the new "alter ego” test is too high and an unnecessary price to pay.

The court defines "party” as "corporate employees whose acts or omissions in the matter under inquiry are binding on the corporation * * * or imputed to the corporation for purposes of its liability” (majority opn, at 374). Similar language to this definition is found in the Official Comment to ABA Model rule 4.2 and caused one commentator to note that "[t]his language is probably the foggiest of all” (Wyeth, Talking to the Other Side’s Employees and Ex-Employees, 15 Litigation 8, 10 [No. 4 Summer 1989]). One consequence is that the determination of who qualifies for the disciplinary rule’s protection under the "alter ego” test may ironically replace a useful and straightforward ex parte interview with a whole new and expensive litigation tier. There is, after all, a begging-the-question twist: the purpose of pretrial discovery — or the ultimate litigation question itself — may well be which employees fit into the protected "party” category under the "alter ego” classification. Who comprises the much narrower and smaller corporate "control group” is a relatively less complicated and conflicted problem.

I emphasize that attorney-client communications are unaffected by this case. This privilege, however, serves different purposes and policies (see, Upjohn Co. v United States, 449 US 383; Rossi v Blue Cross & Blue Shield, 73 NY2d 588). Also, an attorney representing an adverse party seeking to interview any corporate employee who has individually retained counsel would be bound by the prohibition of DR 7-104 (A) (1).

In sum, blanket protections from disclosure by a corporate defendant’s employees may be appropriate and necessary when the alternative is a violation of the attorney-client privilege (Upjohn Co. v United States, 449 US 383, supra; Rossi v Blue Cross & Blue Shield, 73 NY2d 588, supra). That can be remedied and controlled after the fact, rather than by shutting down the opportunities for appropriate fact gathering at the outset. The narrower restriction seems particularly suited to the situation before us, inasmuch as we are free to make a policy choice somewhat on a tabula rasa, save for the guidance only of the specialized Code of Professional Responsibility, not some broad public policy legislative enactment. After all, "[i]t is not the purpose of the rule [DR 7-104 (A) (1)] to protect a corporate party from the revelation of prejudicial facts.” (Wright v Group Health Hosp., 103 Wash 2d 192, 200, 691 P2d 564, 569 [1984].)

Chief Judge Wachtler and Judges Simons, Alexander, Titone and Hancock, Jr., concur with Judge Kaye; Judge Bellacosa concurs in a separate opinion.

Order modified, without costs, in accordance with the opinion herein and, as so modified, affirmed. Certified question answered in the negative.

      . DR 7-104 (A) (1) reads: "During the course of [the] representation of a client a lawyer shall not * * * [c]ommunicate or cause another to communicate with a party [the lawyer] knows to be represented by a lawyer in that matter unless [the lawyer] has the prior consent of the lawyer representing such other party or is authorized by law to do so.”
      Employees individually named as parties in the litigation, and employees individually represented by counsel, are not within the ambit of the question presented by this appeal. Nor, obviously, are direct interviews on consent of counsel, or those authorized by law, or communications by the client himself (unless instigated by counsel).

      . Two subsidiary matters deserve mention. First, we reject DeTrae’s claim that this appeal must be dismissed for mootness by reason of the fact that all potential witnesses are now former employees available for interview. In that plaintiff disputes this assertion, and represents that he seeks an ex parte interview with a current DeTrae employee and possibly employees of the other entities, the appeal is not moot and we need not consider whether the appeal would otherwise fall within an exception to the mootness doctrine (see, Matter of Sharon B., 72 NY2d 394, 397). Second, in the trial court and the Appellate Division the parties litigated the right to pursue both oral and written discovery of the same entity. In the Appellate Division plaintiff prevailed on his claim that he was entitled to both depositions and written interrogatories of defendants, and no appeal is taken from that determination.

      . This rule was adopted only in one formerly reported decision and three bar association ethics committee opinions (see, Committee on Professional Ethics, Bar Assn of Nassau County Opn No. 2-89 [1989]; Los Angeles County Formal Ethics Opn No. 410 [1983]; New York County Lawyers’ Assn, Opn No. 528 [1964]). The formerly reported decision, Hewlett-Packard Co. v Superior Ct. (Jensen) (205 Cal App 3d 43, 252 Cal Rptr 14), was "depublished” by the California Supreme Court and thus is without precedential significance. Moreover, on November 28,1989, the California Supreme Court approved a new disciplinary rule which permits attorneys to initiate ex parte interviews with certain employees of a corporation (see, Cal Rules Prof Conduct, rule 2-100; Triple A Mach. Shop v State of California, 213 Cal App 3d 131, 261 Cal Rptr 493).

      . A "control group” test was adopted in Fair Automotive Repair v Car-X Serv. Sys. (128 Ill App 3d 763, 471 NE2d 554), Maxwell v Southwestern Bell Tel. Co. (No. 80-4239 [D Kan, Oct. 28, 1980]), and three bar association opinions (Los Angeles County Bar Assn Opn No. 369 [1977]; Arizona State Bar Assn Opn No. 203 [1966]; Idaho State Bar Assn Opn No. 21 [I960]).

      . See, e.g., Wright v Group Health Hosp., 103 Wash 2d 192, 691 P2d 564; Bey v Village of Arlington Hgts., 50 Fair Empl Prac Cas (BNA) 1375 (ND Ill); Chancellor v Boeing Co., 678 F Supp 250 [D Kan]; Porter v Arco Metals Co., 642 F Supp 1116 (D Mont); Frey v Department of Health & Human Servs., 106 FRD 32 (ED NY); Shealy v Laidlaw Bros., 34 Fair Empl Prac Cas (BNA) 1223 (D SC); Sobel v Yeshiva Univ., 28 Empl Prac Dec (CCH) Ü 32,479 (SD NY); see also, ABA/BNA Lawyers’ Manual on Professional Conduct, at 71:303-71:304 (1984). Among bar associations the test has, for example, been adopted in ABA Committee on Ethics and Professional Responsibility, Informal Opn No. 1410 (1978); Alabama State Bar Assn, Ethics Opn No. RO-83-81 (1983); Alaska Bar Assn, Ethics Opn No. 71-1 (1971); Committee on Ethics, Colorado Bar Assn, Opn No. 69 (1985); District of Columbia Bar Assn, rule 4.2 (Mar. 1, 1990); Bar of Georgia, Formal Advisory Opn No. 87-6 (87-R2), issued by the Supreme Court July 12, 1989; Idaho State Bar Assn, Formal Opn No. 22 (1960); Professional Ethics Committee, Board of Overseers, Bar of State of Maine, Opn No. 94 (1989); Committee on Professional and Judicial Ethics, State Bar of Michigan, Opn No. CI-526 (1980); Committee on Legal Ethics and Professional Conduct, Ohio State Bar Assn, Opn No. 81-5 (1981); Professional Guidance Committee, Philadelphia Bar Assn, Guidance Inquiry No. 88-30 (1988); State Bar of Texas, Opn No. 342, 23 Baylor L Rev 877 (1968); Standing Committee on Legal Ethics, Virginia State Bar, Legal Ethics Opn No. 905 (1987).

      . Given the nationwide experience with the test we now adopt, we find no basis for the assertion made in . the concurrence that the test will unnecessarily curtail informal factgathering or itself generate litigation. Above all, our test is decidedly different from the Appellate Division’s blanket ban (concurring opn, at 376); in this very case, for example, we are reversing the Appellate Division’s prohibition and permitting interviews of employee-witnesses to an accident, which would not be allowed under a blanket ban. In order to put to rest any possible confusion, we make clear that the definition of "party” we adopt for the purposes of DR 7-104 (A) (1) is not derived from the Official Comment to ABA Model rule 4.2 (concurring opn, at 377).