I would like to submit a brief addendum to a recent helpful article concerning file workup, “Investigative Interviews: The Core of Case Intelligence,” by Zoe Dolan (NYLJ. Nov. 23).
What happens when your investigator approaches a witness who states that they are represented by an attorney? In New York, so long as the targeted witness is not represented by counsel in a related or non-related criminal proceeding, the investigator may continue with the interview. In Grievance Committee for the Southern District of New York v. Simels, 48 F.3d 640 (2d Cir. 1995), the U.S. Court of Appeals for the Second Circuit interpreted DR 7-104(A)(1)(now RPC Rule 4.2) narrowly, and determined that an attorney did not violate that rule by interviewing a non-party (non-codefendant) witness in a criminal case even though the witness was represented by counsel.
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