Ethics Opinions

Opinion 03-03

Summary: A lawyer representing a defendant in a criminal proceeding may not contact the complaining witnesses without permission of their private attorney even if a civil action has not yet been filed.

Facts: Lawyer (L) represents a criminal defendant in a “road rage” case. The Assistant District Attorney granted L permission to contact the two complaining witnesses. Before L had done so, a private attorney wrote L stating that he represents the two complaining witnesses and that L should not contact them directly. L asks whether he may nevertheless contact the two witnesses since the private attorney does not represent them in this criminal case and since no civil suit has been filed.

Discussion: Rule 4.2 of the Massachusetts Rules of Professional Conduct provides:

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 by law to do so.

Unless L has information leading him to believe that the private attorney has misrepresented his status, he knows that the complaining witnesses are represented by another lawyer. Under Rule 4.2, the issue is whether the representation is in “the matter.” One matter is certainly the pending criminal proceeding. The Assistant District Attorney does not, and never did, represent the complaining witnesses. Her client is the Commonwealth. Complaining witnesses in a criminal matter may certainly retain a private attorney to represent them with respect to their testimony, whether a civil suit is contemplated or not. That is what the private attorney in this inquiry appears to be asserting as his role.

Moreover, if a civil suit is contemplated, it would be only natural for the private attorney to represent the witnesses in both matters because their testimony in the criminal matter would be highly relevant to any civil suit. Cases and ethics opinions from other jurisdictions support the conclusion that closely related, albeit legally distinct, matters should be treated as the same “matter” for purposes of Rule 4.2 See, e.g., State v. Yatman, 320 So.2d 401 (Fla. Dist. Ct. App. 1975) (separate criminal proceedings should be treated as the same “matter” under predecessor to Rule 4.2 when they arose from the same criminal escapade); D. C. Bar Ethics Opinion No. 263 (1996) (even though Lawyer limited his representation to one aspect of a case, Rule 4.2 prohibited opposing counsel from speaking to Lawyer’s client about other aspects without Lawyer’s permission when there were common issues between the various aspects). Rule 4.2 exists to prevent lawyers from taking advantage of uncounseled persons and to prevent interference with the lawyer-client relationship. Were L to contact the complaining witnesses directly, without the private attorney’s permission, they might well make imprudent admissions or concessions that would damage the private attorney’s ability to represent them effectively.

The fact that no civil action has yet been filed does not authorize L to communicate with the complaining witnesses. Comment 3 to Rule 4.2 states, “This rule applies to communications with any person, whether or not a party to a formal adjudicative proceeding, . . . who is represented by counsel concerning the matter to which the communication relates.” If the complaining witnesses have consulted their attorney about the road rage incident, he represents them for purposes of Rule 4.2 even if no civil action has been filed.

For all these reasons, the Committee concludes that L may not contact the complaining witnesses without first obtaining the consent of their attorney.

This advice is that of a committee without official governmental status.

©2014 Massachusetts Bar Association