30 September 2014

Talking to the Represented (Rule 4.2)

I'm sure this happens to other lawyers as well, but I think it's a hazard run across by prosecutors more than most. For some reason, defendants think that if they can just talk to the prosecutor and explain their circumstances they can make the situation better. Most often this occurs as you are walking down the hall and the defendant is waiting in ambush. "Mr. Lammers can I talk to you a minute?" Then come the times that you are out at the store and someone chases you down as you are trying to buy some socks. "Hey, do you work in the prosecutor's office? Let me tell you about my case." Then there's the lady on the phone who somehow talks her way past the receptionist and talks to you about the case for five minutes before you realize she isn't the witness you were expecting a call from - she's the defendant. And these are only the most common ways that defendants have approached me.

Generally, a prosecutor tries to avoid speaking to a represented defendant. Not that this stops the defendants. On more than one occasion I've had to walk away from people insistent on talking with me.  I've also had to hang up on a couple people. Some people just will not accept the fact that a prosecutor cannot talk to them without running it past their attorney first.

Of course, prosecutors also face a unique problem in the courtroom. A high percentage of Pitcairn County's misdemeanor crime originates in Lou's Trailer Park. Today's victim out of Lou's Trailer Park is quite often tomorrow's defendant out of Lou's Trailer Park. She already has an attorney assigned for tomorrow's case. Can the prosecutor talk to her about today's case?

Communications with a represented person is covered both by ABA Model Ethics Rule 4.2 and Virginia Ethics Rule 4.2 (the struck through section is in the ABA's version, but not Virginia's):
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.
The key phrase to zero in on in this situation is "in this matter."  This fairly clearly delineates when one can and cannot talk to a person.  However, if it is not clear enough both the ABA Model and Virginia's actual clarify in comment 4 (I provide Virginia's more streamlined version):
[4] This Rule does not prohibit communication with a represented person . . . concerning matters outside the representation. For example, the existence of a controversy between an organization 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. Also, parties to a matter may communicate directly with each other and a lawyer having independent justification or legal authorization for communicating with the other party is permitted to do so.
So, as long as the case for the victim today is not entangled with the case in which she is the defendant tomorrow the prosecutor can talk to her, but only about the case in which she is the victim.

An interesting variance between the Virginia rule and the ABA model is the striking of the judicial release valve by Virginia.  Virginia does not allow contact with a represented person solely because a court orders it. It struck the language from the model rule and declined to adopt comment 6:
[6] A lawyer who is uncertain whether a communication with a represented person is permissible may seek a court order. A lawyer may also seek a court order in exceptional circumstances to authorize a communication that would otherwise be prohibited by this Rule, for example, where communication with a person represented by counsel is necessary to avoid reasonably certain injury. 
Sorry about the loud disclaimers, but as certain as the sun will rise tomorrow if I don't do it someone will ding me in the comments: "You're wrong about comment 6. How can you possibly quote it? You need to go back and reread the rule because that's not in it. Geez. More proof that prosecutors are evil and can't read."

The reason this difference is important is another situation often run into in misdemeanor court. Defendant has hired an attorney for a misdemeanor he was never going to get jail time on. The attorney has not appeared in court fourteen times because she's off doing slightly more important things like trying murder trials or arguing an appeal or giving birth to her child or . . . The judge wants to clear this piddly case from his docket.  He turns to you, "Mr. Lammers talk to Mr. Smith and see if we can't settle this today." Under the ABA's version the prosecutor has been ordered to talk to a represented client. Under Virginia's version he is still forbidden ethically from doing so.

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