Dec. 15, 2021 – Is it a violation of the “no contact” rule if a prosecutor only listens to, but asks no questions of, a represented defendant without the consent of the defendant’s lawyer?

Question

I am a prosecutor. A represented defendant contacted a detective and wished to discuss the charges against him.

The detective suggested that I accompany him to the jail to speak with the defendant, but that I just “sit and listen.”

I don’t believe I can do that because of the “no contact” rule, but one of my colleagues said that the rule prohibits “communication” only, and if I merely listened without asking questions, how could I be communicating?

Does a lawyer violate the “no contact” rule just by listening?

Answer

SCR 20:4.2 states, in relevant part:

(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.

So, the rule does indeed prohibit “communication” rather than “contact,” but that does not answer the question of what it means to “communicate” in violation of the rule.

These facts are drawn from In the Matter of Howes.¹ In that disciplinary action, the respondent lawyer was a New Mexico licensed assistant U.S. Attorney working in Washington, D.C.

The respondent accepted phone calls from a represented defendant, but argued in the disciplinary proceeding that he did not ask questions but merely listened and therefore did not “communicate” as prohibited by the rule. The New Mexico Supreme Court rejected that argument, stating:

To argue that one does not violate Rule 16-402 if one does not ask questions or impart information borders on sophistry. People do not compromise their positions or waive their defenses by listening to an attorney; they do so by talking while the attorney listens.

“Communication” and “interrogation” are not synonymous, and it is “communication” that is prohibited by Rule 16-402. One can communicate interest and concern simply by indicating a willingness to listen. Since criminal defendants who are in custody often attempt to seek out and explain themselves to persons in authority under the generally misguided notion that they can extricate themselves from an unfortunate situation, the apparent willingness of a detective and a prosecutor to consider a defendant's version of the facts can be a particularly compelling message. “The influence of the prosecutor's presence is immeasurable.” People v. Green, 405 Mich. 273, 274 N.W.2d 448, 456 (quoting Justice Moody, concurring in part and dissenting in part). Respondent and the detective were well aware that defendant was attempting to discuss the evidence in his own case in order to help himself and they used his false hope to their advantage. Even if they asked no questions of defendant, by granting him an audience they tacitly encouraged him to keep talking.

While a lack of overreaching by a prosecutor in this situation may be a mitigating factor, it does not excuse compliance with the standard prescribed by Rule 16-402. In People v. Green, the prosecutor merely listened to and took notes on the statement of a murder suspect (at the suspect's request) and, at the end of the statement, simply asked the man whether he had been telling the whole truth. Although the statement was found to be voluntary, the attorney's violation of Rule 7-104(A)(1) was recognized by the court.

We therefore reject respondent's argument that an attorney does not violate Rule 16-104 unless he or she is an active participant in a conversation with a represented opponent regarding the subject matter of the representation.

While this result is unlikely to be surprising to many lawyers, there are a few points worth making.

First, it is generally accepted that “observing,” such as of the business practices of a represented entity,² or viewing the website of a represented entity,³ does not constitute “communication.” Also, one court has held that a lawyer, who passively listened to a client’s phone call with opposing party that the lawyer did not direct or control, did not communicate – but held that the lawyer’s failure to disclose her presence violated 8.4(c).⁴

Notwithstanding, the lawyer’s use of a surrogate runs afoul of the prohibition in SCR 20:8.4(a) of violating the rules through the acts of another.

Second, the violation of a disciplinary rule such as SCR 20:4.2 does not necessarily affect the admissibility of evidence obtained through violation of the rule,⁵ although some courts consider the violation so severe that exclusion is warranted.

While there is some ambiguity in the law, caution is warranted when a lawyer is tempted to take a narrow view of “communication” under SCR 20:4.2.

Endnotes

¹ In the Matter of Howes, 123 N.M. 111, 940 P.2d 159 (1997). This case has an interesting procedural history regarding the ability of licensing states to discipline federal attorneys. The courts held that the states do have such authority and this was codified by Congress in legislation known as the McDade Amendment.

² See Hill v. Shell Oil Co., 209 F. Supp. 2d. 876, (N.D. Ill 2002).

³ See Oregon Ethics Op. 2005-164 (2005).

⁴ See In re Peters, 2006 WL 6889164 (Ill. ARDC Sept. 22, 2006).

⁵ See United States v. McNaughton, 848 F. Supp.1195 (E.D. Pa. 1994).