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Bar Counsel Notes: Contact with Opposing Counsel
Question:
Attorney Y represents the Defendant in a Domestic Violence case. Defendant and the victim in that matter have each also been charged with other criminal conduct (illegal drugs) that occurred after and is separate from the DV matter. Attorney Y knows that the victim has an attorney (A) for the new drug charge, but Attorney A is not her attorney regarding the Domestic Violence matter. Can Attorney Y's private investigator speak with the DV victim without obtaining Attorney A's consent?
Answer:
Yes. MRPC Rule 4.2(a) is the relevant operative Rule, and only requires such consent if the person to be contacted or spoken to (the Domestic Violence victim) is represented by an attorney in the same matter to be discussed. In this case, since the DV victim is not represented by Attorney A in that matter, Y's investigator may directly contact her. However, Attorney Y should give specific instructions to the private investigator to not talk about that other unrelated "drug matter," and if the DV victim brings it up, he should tell her that he can't discuss that matter at all with her, only the Domestic Violence charge. While not directly on point with the above scenario, Professional Ethics Commission Advisory Opinion #210 is instructive on these related issues.
*Disclaimer: The Informal Ethics Advisory Notes from Bar Counsel are intended as outreach by the office of Bar Counsel for the use and benefit of the Maine bar. These scenarios are drawn from actual telephone calls received by the attorneys in the office of Bar Counsel in the course of providing informal advice on the Code of Professional Responsibility, known as Bar Counsel's "Ethics Hotline." The particular advice in each case is limited with reference to the particular factual situation related by the inquiring attorney who must be inquiring about his or her own conduct or the conduct of a member of his or her firm. We do not provide any advice to one attorney about the conduct of another attorney unless they are members of the same law firm. In the telephone opinions, we usually explore and discuss additional factual variables. However, I have attempted to pare down these factual scenarios to make the email newsletter more readable and useful in a general sense. Obviously, that creates the risk that slight variations on the facts, to a learned reader, may give rise to a different analysis and conclusion.
