Can a State's Attorney call a represented juvenile defendant directly to get her testimony against the others arrested with her?

Plain-English summary

A lawyer represented client A, a minor charged in juvenile court with illegal consumption of alcohol. A admitted the allegation and was placed under court supervision under the Juvenile Court Act. Other defendants had been arrested with her in the same incident. The State's Attorney called A, was told by her mother that A was represented by counsel, then called again and spoke to A about the incident to elicit her testimony against the other defendants, without first obtaining the consent of A's lawyer.

The committee applied former Rule 7-104(a)(1), which bars a lawyer from communicating about the subject of the representation with a party he knows to be represented, without the other lawyer's prior consent or legal authorization. The committee reasoned that A's matter was still pending because a violation of her court-supervision conditions would expose her to further court action, so she remained a represented party. The committee acknowledged the argument that the "matter" of the current communication was the charge against the other defendants rather than A's own case, but it did not adopt that distinction.

The committee reaffirmed ISBA Opinion 320, which states that members of a State's Attorney's office may not ethically communicate with a represented criminal defendant outside the presence of and without the consent of counsel, and which quoted Drinker's Legal Ethics that a prosecutor may not interview a represented co-defendant except in counsel's presence. The committee found the facts clearly similar and reaffirmed that conclusion.

Currency note

This opinion was issued in March 1989, under the former Illinois Code of Professional Responsibility and before Illinois adopted the 1990 (and later 2010) Rules of Professional Conduct. The ISBA Board of Governors affirmed the opinion in May 2010 as generally consistent with the 2010 Rule (Rule 4.2), while cautioning that the specific standards referenced may differ from the 2010 Rules. 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 Treat this page as historical context, not current guidance.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 or requirement mentioned here.

Common questions

Q: Can a prosecutor talk to a represented defendant without going through her lawyer?

A: The opinion concluded no; former Rule 7-104(a)(1) bars communicating about the subject of the representation with a known-represented party without the lawyer's prior consent or legal authorization.

Q: Does a defendant placed under court supervision still count as represented?

A: Per the opinion, yes; her matter remained pending because violating the supervision conditions would expose her to further court action, so the no-contact rule still applied.

Q: Does it matter that the prosecutor wanted her testimony against other defendants, not about her own case?

A: The opinion noted the argument that the communication concerned the co-defendants' charges, but did not adopt it; reaffirming Opinion 320, it treated contacting the represented defendant as improper.

Background and rules framework

The opinion applied former Illinois Code Rule 7-104(a)(1), the no-contact rule barring communication with a represented party about the subject of the representation without the other lawyer's consent. The Board's 2010 affirmation maps the analysis to current Illinois Rule of Professional Conduct 4.2, corresponding to ABA Model Rule 4.2.

Citations and references

Rules of Professional Conduct:

• Illinois Code Rule 7-104(a)(1) (former Code, applied in the opinion)
• Illinois RPC 4.2 (2010 equivalent per the Board's affirmation)
• MR 4.2 (communication with a represented person)

Other opinions cited:

• ISBA Opinion No. 320: members of a State's Attorney's office may not communicate with a represented criminal defendant without counsel's consent

See also

• ISBA Ethics Op. 88-07: Suing a Former Government Client With "Public" Confidences
• ISBA Ethics Op. 89-17: Who Is the Client When an Insurer's Staff Lawyer Defends the Insured

Source

• Landing page: https://www.isba.org/ethics/opinions/8810