87-08: Communication; Adverse Party

4/1987

Attorney may not interview the daughter of his client, who is represented by other counsel, in the absence of opposing counsel.

FACTS

Attorney A represents a client who is charged with the criminal offense of sexual assault, the alleged victim being the 15-year-old daughter of Attorney A's client. The criminal case is being prosecuted by a County Attorney's office in the Superior Court. In the Juvenile Division of the Superior Court, proceedings are pending, arising out of the same facts as those in the criminal case, to have the child adjudicated a dependent child. That proceeding is being prosecuted by the state Attorney General's office. In the juvenile proceeding, the judge appointed Attorney B to represent the child in the dependency matter, and granted Attorney B authority to appear in any criminal proceeding where the presence of the child is required. Subsequently, Attorney B entered a notice of appearance in the criminal case.

After the notice of appearance, Attorney B requested to be copied on all pleadings filed by the parties, and to be allowed to attend any interviews of the child.

Subsequently, the child called Attorney A and asked to speak with him outside the presence of Attorney B. The child stated that she does not want Attorney B present because she believes that Attorney B is breaching her confidences. Additionally, the child is living with her mother, who has legal custody. The mother has also asked Attorney A to interview the child outside the presence of Attorney B.

The child, as a potential primary witness in the criminal proceeding, is regarded as the crucial witness in Attorney A's representation of his client.

Attorney A inquires whether he can accede to the child's request, so long as the mother is present, and interview the child without notice to Attorney B.

QUESTION

Can Attorney A, in the course of fulfilling his duty to represent his client effectively, and with ethical propriety, interview the child in the presence of her mother without notice to Attorney B?

ETHICAL RULE INVOLVED

ER 4.2. Communication with Person Represented by Counsel

OPINION

ER 4.2 provides:

In representing a client, a lawyer shall not communicate about the subject of the representation with a party 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.

The inquiring lawyer knows that the child he wishes to interview is represented by other counsel. The child's attorney, although appointed by the juvenile court to represent the child in the juvenile proceedings, was specifically authorized to represent the child in connection with the very criminal proceeding in which the inquiring attorney may want the girl to testify. In addition the child's attorney had filed a notice of appearance in that same criminal case. Onder the circumstances, the inquiring attorney may not interview the daughter of his client without violating ER 4.2.

Formal opinions of the Committee on the Rules of Professional Conduct are advisory in nature only and are not binding in any disciplinary or other legal proceeding. This opinion is based on the Ethical Rules in effect on the date the opinion was published. If the rules change, a different conclusion may be appropriate.