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ETHICS OPINION 676-1990 WITNESS (ATTORNEY INTERVIEWING ADVERSE PARTY).
NEW YORK COUNTY LAWYERS ASSOCIATION
Committee on Professional Ethics
QUESTION NO. 676 (89-7)
TOPIC: WITNESS (ATTORNEY INTERVIEWING ADVERSE PARTY).
DIGEST: A criminal defense attorney may not interview a non-party witness who is represented by counsel in a separate criminal proceeding without the consent of the witness’s attorney.
CODE: DR 7-104(A)(l), EC 7-18.
QUESTION:
May defense counsel in a criminal proceeding interview a non- party witness who is represented by counsel in a separate criminal proceeding without the consent of the witness’s attorney?
OPINION:
An attorney (Attorney A) for a defendant (Party A) in a criminal proceeding has learned that the brother (Party B) of the deceased victim has been arrested on felony charges in a separate matter, is incarcerated with Party A, and is represented by counsel (Attorney B) in that matter. Attorney A has a good faith basis to believe that Party B has exculpatory information or leads concerning Party A. Attorney B refuses to allow Attorney A to speak to Party B. May Attorney A speak to Party B without the permission of Attorney B?
The Purpose of DR 7-104
DR 7-104(A)(1) states that an attorney shall not “communicate or cause another to communicate on the subject of the representation with a party he knows to be represented by a lawyer in that matter [referred to in this Opinion as the “Represented Party”] unless he has the prior consent of the lawyer representing such other party or is authorized by law to do so.” This restriction has two complementary purposes: First, it preserves the integrity and proper functioning of the lawyer-client relationship between the Represented Party and his or her lawyer. Second, it protects a Represented Party from the superior knowledge and skill of another lawyer.
Applicability to Persons Whose Interests are not Adverse
Although the title of DR 7-104 is “Communicating with One of Adverse Interest”, DR 7-104(A)(1) does not require that the interests of the Represented Party be adverse to those of the lawyer’s client. We believe that one purpose of the rule is to ensure that the interests of the Represented Party may be protected by his or her lawyer. As one commentator has noted, even well-intended acts of a lawyer may have a coercive impact on the Represented Party and may induce the party to disclose privileged information. See Jurlantzik, “The Prohibition on Communication with an Adverse Party”, 51 Conn. B.J. 136 (1977). For example, in the facts presented to us, even though Party B is not himself a suspect in the criminal case for which Party A has been charged, the exculpatory information he possesses may be useful to his attorney, Attorney B, in negotiating a plea bargain in his own felony case.
The Meaning of the Term “Party”
While the provisions of DR 7-104 (A)(1) are applicable to a “party” represented by counsel, this provision has been interpreted to apply to any “person” who is represented by a lawyer. This is consistent with EC 7-18, which states, “a lawyer should not communicate on the subject matter of the representation of his client with a person he knows to be represented by a lawyer” (emphasis supplied).
The Subject of the Representation
DR 7-104(A)(l) prohibits communication with a Represented Party only if it concerns “the subject of the representation” and only if the Represented person is represented “in that matter”. Accordingly, some court cases and ethics opinions have held that DR 7-104(A)(l) is not violated where the Represented Party is not represented in the matter that is the subject of the communication. However, other opinions have found that representation by an attorney in one matter constitutes general representation, and that another lawyer may not communicate with such a Represented Person without the consent of his or her lawyer.
As noted above, in many cases, the subject of the communication in Attorney A’s matter may affect the representation by Attorney B. This is especially true in criminal cases, where disclosures made by the defendant to another lawyer without the knowledge and consent of the defendant’s own lawyer may have a significant effect on the legal rights of the defendant. In such cases, we believe the communication should be deemed to concern the “subject of the representation”. Similarly, we believe the policies addressed by the Rule are best served in a criminal case when the lawyer for the Represented Party is deemed to represent the interests of that party for all purposes which may be relevant or useful in the lawyer’s representation of that party (except where another lawyer is known to represent the client in other matters). Only then will the Represented Party’s lawyer be in a position to represent completely the interests of the Represented Party.
There will be some instances in which it is obvious that the subject matter of the proposed communication with the Represented Client is not relevant or useful in the lawyer’s representation of the Represented Party. In those instances, the consent of the other lawyer will not be necessary. However, in many instances, including the case presented here, it will not be obvious. The Represented Party’s own lawyer, and not a stranger to his or her case, should be the one to determine whether the subject of the communication is useful or relevant to the representation of the Represented Client and whether it is in the interests of the client to communicate to third persons.
CONCLUSION:
A lawyer may not interview a non-party potential witness who is represented by counsel in a non-related criminal proceeding without the consent of the witness’s attorney.
February 12, 1990
1. See ABA Formal Opin. 108 (1934), Frey v. Department of Health and Human Services, 106 FRD 32 (E.D.N.Y. 1985) (quoting Wright v. Group Health Hospital, 103 Wash.2d 192, 691 P.2d 564 (1984)( “[B]oth courts and commentators have emphasized that the rule is meant ‘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’ “ See generally, ABA/BNA Lawyers’ Manual on Professional Conduct, Obligations to Third Persons, 71:302 (ABA/BNA 1988), Wolfram, Modern Legal Ethics §11.6.2.
2. See State v Russell, 194 Neb. 64, 230 N.W.2d 196, 202 (1975) (Defendant was being represented by a public defender in one juvenile proceeding, but not in a different matter. County attorney did not violate DR 7-104(A)(l) in communicating on the second matter); U.S. v. Masullo, 489 F.2d 217, 223 (2d Cir, 1973)(Narcotics agents knew defendant was being represented in a state drug prosecution but were unaware he had retained a lawyer in the Federal case); Nassau County Bar Association Committee on Professional Ethics, Opinion 85-3 (5/21/85) (Father retained attorney to bring suit against the hospital and doctor who treated his daughter. Prior to bringing suit, father suggested that the physician speak with the attorney); ABA Formal Opin. 66 (1932) (Former Canon 9 did not apply where the Represented Party was asked to supply the name of a witness, since the name of a witness was not a “subject of the controversy”). Cf. N.Y. State 160 (1970) (Once there is an indication that counsel has been designated by a party, all communications concerning that matter must thereafter be made with the designated counsel).
3. See State v. Yatman, 320 So.2d 401 (Fla. Dist. Ct. App. 1975)(DR 7-104 (A) applied where the two cases were so closely connected that testimony in one was likely to be relevant in the other); Abeles v. State Bar, 9 Cal.3d 603, 108 Cal. Rptr. 359, 363 (1973)(California equivalent to DR 7-104 is applicable to any party who has counsel of record, whether or not counsel was in fact authorized to act for the party in the specific instance).