June 21, 2017 – When you need to talk to a witness for a case, and that witness is in jail on an unrelated matter, should you contact that witness’ lawyer before talking with the witness? Are you free to contact a person represented in an unrelated matter?
Question
Have an Ethical Dilemma?
Ethical dilemmas affect every lawyer’s practice. This series of questions and answers appears each month in InsideTrack. The answers, offered by the State Bar’s ethics counsel Timothy Pierce and Aviva Kaiser, are intended to provide guidance only and are not legal authority. Each situation will depend on the facts and circumstances involved.
As a State Bar member, you have access to informal guidance in resolving questions regarding Wisconsin’s Rules of Professional Conduct for Attorneys. To informally discuss an ethics issue, contact Pierce or Kaiser. They can be reached at (608) 229-2017 or (800) 254-9154, Monday through Friday, 9 a.m. to 4 p.m.
I represent a client charged with attempted homicide for shooting at a person on a street corner. When I review possible witnesses on any matter, I always check the names on CCAP to see if there are any pending charges. It turns out that one of the most important witnesses against my client is now in jail on wholly unrelated burglary charges. I would like to go with my investigator to the jail to see if the witnesses will speak to us about the attempted homicide charges.
Do I need the permission of the lawyer who represents the witness on the unrelated burglary charge to speak to the witness?
Answer
Contact with represented parties is governed by SCR 20:4.2, which provides as follows:
(a) In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order.
(b) An otherwise unrepresented party to whom limited scope representation is being provided or has been provided in accordance with SCR 20:1.2(c) is considered to be unrepresented for purposes of this rule unless the lawyer providing limited scope representation notifies the opposing lawyer otherwise.
ABA Comment paragraph [4] states
[4] This Rule does not prohibit communication with a represented person, or an employee or agent of such a person, concerning matters outside the representation. For example, the existence of a controversy between a government agency and a private party, or between two organizations, does not prohibit a lawyer for either from communicating with nonlawyer representatives of the other regarding a separate matter. Nor does this Rule preclude communication with a represented person who is seeking advice from a lawyer who is not otherwise representing a client in the matter. A lawyer may not make a communication prohibited by this Rule through the acts of another. See Rule 8.4(a). Parties to a matter may communicate directly with each other, and a lawyer is not prohibited from advising a client concerning a communication that the client is legally entitled to make. Also, a lawyer having independent justification or legal authorization for communicating with a represented person is permitted to do so.
(emphasis added)
The Rule and comment make plain that the prohibition contained in SCR 20:4.2 applies only to a person or party represented in the same matter in which the contacting lawyer represents a client.
Thus, the lawyer who represents the client charged with attempted homicide is free to contact the witness without the consent of the lawyer who represents the witness on an unrelated burglary charge.1
Lawyers are free to communicate with represented persons concerning matters in which the contacting lawyer does not represent any client.
SCR 20:4.2 also does not prohibit a lawyer from contacting a person who is represented on a different, but related matter. For example, in People v. Santiago, 925 N.E.2d 1122, (Ill. 2010), the Illinois Supreme Court held that prosecutors didn't violate Rule 4.2 by interviewing a mother who was a suspect in a child abuse case without notifying the lawyer who had been appointed to represent her in a separate child protection proceeding arising from the same underlying facts.2
In Case You Missed It: Read Past Ethical Dilemmas
Ethical Dilemmas appears monthly in InsideTrack. Check out these topics from recent issues:
Where Are the Conflicts After a Lawyer Leaves a Firm?, May 17, 2017
When lawyers leave a firm, do they take their conflicts with them? Or do the conflicts remain at the firm after the lawyer is gone? The answer may come down to this: where is the file, and did that lawyer have help with the case?
When Do Job Negotiations Require Conflict Waivers?, April 19, 2017
There is a difference between sending out resumes, and a mutual expression of interest between a lawyer and a firm. So, just when do you need to let a client know that you are seeking a job with another firm?
Endnotes
1 See also Grievance Comm. v. Simels, 48 F.3d 640 (2d. Cir. 1995); N.Y. State Ethics Op. 884 (2011) and N.Y. State Ethics Op. 904 (2012).
2 See also State ex. Rel. Oklahoma Bar Assoc. v. Harper, 995 P.2d 1143 (Okla. 2000).
