May the Government Communicate With a Represented Client?
Ethics and Criminal Practice columnist Joel Cohen writes: The question itself seems ridiculous, doesn't it? Of course, the answer has to be "no." Except … not really.
August 07, 2017 at 02:03 PM
18 minute read
The question itself seems ridiculous, doesn't it? Of course, the answer has to be “no.” Except … not really.
There was a time when a criminal attorney would call the prosecutor, or even the investigating agent, and say: “I represent X. All future contacts should/must be through me.” That would be the end of it. No prosecutor would dare authorize the investigating agent, or an informant operating under the agent's instruction, to speak to X behind the lawyer's back. Nor, certainly, would the prosecutor contact X directly. Those were the rules of the road; pretty much everyone in the justice system knew them, and adhered to them.
The Thornburgh Memo
At some point, the Justice Department concluded that the “no-contact” rule—prohibiting contact with represented individuals—was inapplicable to federal prosecutors. The department focused on Disciplinary Rule 7-104 (predecessor to NY's Rule of Professional Conduct 4.2) and then-ABA Model Rule 4.2, arguing that prosecutors couldn't be bound by them. NY Rule 4.2 states:
a lawyer shall not communicate or cause another to 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 prior consent of the other lawyer or is authorized to do so by law.
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