AZBAR April 1987

Can a defense lawyer interview a represented child witness outside her lawyer's presence if she and her parent ask for it?

Short answer: The opinion concluded that a defense lawyer may not interview the represented 15-year-old daughter of his client, the key witness in the criminal case, outside the presence of her appointed counsel, even though the child and her mother requested the private interview. Because the child's lawyer had appeared in the criminal case, ER 4.2 barred the contact.

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This page answers the general question as of 1987. Ezel answers yours: whether it's allowed on your facts, under the current rules of professional conduct in your state, with citations.

Disclaimer: Advisory only. Not binding precedent.

About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official ethics opinion. The original opinion (linked on this page) is the authoritative source for any reliance.

Plain-English summary

A lawyer (Attorney A) represented a client charged with sexual assault; the alleged victim was the client's 15-year-old daughter, the crucial witness in the criminal case. In a parallel juvenile dependency proceeding arising from the same facts, the court appointed Attorney B to represent the child and authorized B to appear in the criminal case, where B then entered a notice of appearance and asked to be copied on pleadings and to attend any interviews of the child. The child later called Attorney A, asking to speak with him outside Attorney B's presence because she believed B was breaching her confidences, and the child's mother, who had custody, also asked A to interview the child without B present.

The opinion concluded that Attorney A could not conduct the interview. It applied ER 4.2, which governs communication with a person represented by counsel. The inquiring lawyer knew the child was represented by Attorney B, who had been specifically authorized to represent the child in the very criminal proceeding in which Attorney A wanted her to testify and had filed a notice of appearance in that case. Under those circumstances, the opinion concluded, Attorney A could not interview the child without violating ER 4.2, notwithstanding the requests by the child and her mother.

Currency note

This opinion was issued in 1987, before the State Bar of Arizona's adoption of the 2003 revisions to the Rules of Professional Conduct. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Can a lawyer interview a represented witness if the witness asks to meet privately?

A: The opinion concluded no, on these facts. Because the witness was represented by counsel who had appeared in the criminal case, ER 4.2 barred the lawyer from interviewing her without that counsel, even at the witness's request.

Q: Did it matter that the witness's parent also consented?

A: No. The opinion concluded the mother's request did not authorize the contact, because the controlling fact was that the child herself was represented by counsel in the criminal matter.

Q: What made ER 4.2 apply in a criminal case with a child witness?

A: The opinion emphasized that the child's lawyer was specifically authorized to represent her in the criminal proceeding and had filed a notice of appearance there, so she was a represented person for purposes of ER 4.2.

Background and rules framework

The opinion applied ER 4.2 (Model Rule 4.2), which bars a lawyer from communicating about the subject of a representation with a person the lawyer knows to be represented by another lawyer in the matter, absent that lawyer's consent or legal authorization.

Citations and references

Rules of Professional Conduct:

ER 4.2 / Model Rule 4.2 (communication with a person represented by counsel)

Source

Landing page: https://tools.dev.azbar.org/RulesofProfessionalConduct/ViewEthicsOpinion.aspx?id=556

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

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:

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.

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