Can a Maine prosecutor contact a crime victim who has their own lawyer without that lawyer's consent?

Plain-English summary

The opinion addresses whether Maine Rule of Professional Conduct 4.2, the "no contact" rule, limits a prosecutor's communications with an alleged crime victim (ACV) the prosecutor knows is represented by counsel. The Commission concludes that it does: a prosecutor may not communicate with a represented ACV about the criminal matter, or about a closely related civil matter arising from the same incident, without the consent of the ACV's lawyer, except where the communication is expressly authorized by law or court order.

The opinion reasons that Rule 4.2(a) applies to all lawyers, including prosecutors, whose client is the State of Maine. The Commission rejects the assumption that a prosecutor's and an ACV's interests are necessarily aligned; the prosecutor's duty is to public safety and the goals of the office, not to the victim's separate interests in a parallel civil case (for example, a personal injury or protection-from-abuse matter). A civil action is "closely related" when it arises from the same event and shares common issues of fact.

The prohibition applies only when the prosecutor has actual knowledge that the ACV is represented in the matter to be discussed. The opinion places the burden on the ACV's attorney to make the representation known to the prosecutor as soon as possible. The opinion also identifies authorized exceptions: the grand jury process (the prosecutor may subpoena and question an ACV), and the limited categories of information Maine's crime-victim statutes (17-A M.R.S. ch. 48) require prosecutors to provide. Those statutes do not give broad license to communicate with represented ACVs beyond the specified information. A prosecutor uncertain whether contact is permitted may seek a court order.

In practice

Under the Maine rule as the opinion read it in 2017, a prosecutor who learns that an alleged crime victim is represented by counsel on the criminal matter (or on a closely related civil matter arising from the same incident) must obtain that lawyer's consent before communicating with the victim about it, unless the communication is expressly authorized by law or a court order. The opinion holds that the trigger is the prosecutor's actual knowledge of the representation, so it is the victim's lawyer who must put the prosecutor on notice. The opinion notes the prohibition reaches contact through non-attorney staff such as a victim-witness advocate.

Common questions

Q: Does Rule 4.2 apply to prosecutors at all?

A: Yes. The opinion states Rule 4.2(a) applies to all attorneys, including prosecutors in district attorneys' offices and the Attorney General's office, whose client is the State of Maine.

Q: When is a prosecutor barred from contacting a represented crime victim?

A: When the prosecutor has actual knowledge that the victim is represented by counsel regarding the criminal matter or a closely related civil matter arising from the same incident, and the prosecutor lacks the lawyer's consent or express legal or court authorization.

Q: What makes a civil case "closely related" to the criminal matter?

A: The opinion says a civil action is closely related when it arises from the same event or incident and involves common issues of fact, such that the proceedings could bear on liability or damages in the other.

Q: Do Maine's crime-victim statutes let a prosecutor contact a represented victim?

A: Only for the specific categories of information those statutes require the prosecutor to provide (under 17-A M.R.S. ch. 48). The opinion holds the statutes are not a broad license; for other topics the prosecutor should seek the lawyer's consent.

Q: What can a prosecutor do if unsure whether contact is allowed?

A: The opinion notes Rule 4.2(a) permits contact authorized by a court order, and a prosecutor uncertain whether a communication is permissible may seek one.

Background and rules framework

The opinion interprets Maine Rule of Professional Conduct 4.2 (communication with a person represented by counsel; ABA Model Rule 4.2), including Maine's prosecutor-specific subsection 4.2(c). It reads those rules against Maine's victims'-rights statutes at 17-A M.R.S. ch. 48 (notably section 1172) and 15 M.R.S. sections 812 and 6101, and against the grand jury rules (M.R.U. Crim. P. 6 and 17).

Citations and references

Rules of Professional Conduct:

• Model Rule 4.2 (communication with represented persons)
• Maine R. Prof. Conduct 4.2(a), 4.2(c)

Statutes:

• 17-A M.R.S. section 1172 (victims' rights; prosecutor notification duties)
• 15 M.R.S. sections 812, 6101 (notification requirements)
• M.R.U. Crim. P. 6(d), 17(i) (grand jury)

Other opinions cited:

• ABA Formal Op. 95-396 (1995): application of Rule 4.2 in criminal matters.
• Nebraska Ethics Advisory Op. 09-03 (2009); North Carolina 2009 FEO 7; Oregon Formal Op. 2005-142.
• Maine Prof. Ethics Comm'n Op. #93 (1989): "authorized by law" exception.

See also

• ABA Formal Op. 95-396: Contact With Represented Persons
• CA Formal Op. 1979-049: DA Contact With a Represented Defendant
• ABA Formal Op. 467: Prosecutors' Supervisory Duties

Source

• Landing page: https://mebaroverseers.org/attorney_services/opinion.html?id=741157

Original opinion text

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

Issued by the Professional Ethics Commission

Date Issued: April 5, 2017

** Question:**
When does Maine Rule of Professional Conduct 4.2, Communication With Person Represented by Counsel and Limited Representations, permit a prosecutor to communicate with an alleged crime victim (ACV) if the prosecutor is aware that the ACV is represented by counsel in relation to the event or conduct that is the subject of potential or pending criminal charges in the absence of consent by that lawyer?

** Brief Answer:**
Under Maine Rule of Professional Conduct 4.2, a prosecutor may not communicate with an ACV whom the prosecutor knows to be represented by counsel regarding the criminal matter or a closely related civil matter arising from the same incident or conduct without the consent of the ACV's lawyer, except as such communication is expressly authorized by law or court order.

** Discussion: **
In this Opinion, the Commission addresses the extent to which Rule 4.2 applies to a prosecutors communications with an individual who is an identified victim or complainant in a criminal matter if such individual is represented by counsel. Rule 4.2(a) sets forth the core requirement of the "no contact" rule:

In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order. Specific limitations on communications by a prosecutor are contained in (c).

Rule 4.2(a) applies to all attorneys, including those who prosecute criminal matters through county district attorneys offices or the Office of the Attorney General; a prosecutors client is the State of Maine.1 The subject of the representation in a criminal law context refers to the incident or conduct at issue in the charges or investigation.

As noted in the first comment to MRPC 4.2, the limitation on attorney communications with represented persons

contributes to the proper functioning of the legal system by protecting a person who has chosen to be represented by a lawyer in a matter against possible overreaching by other lawyers who are participating in the matter, interference by those lawyers with the client- lawyer relationship and the uncounseled disclosure of information relating to the representation.

Rule 4.2, Comment [1]. In addition, the Maine Reporters Note observes that, in recognizing the importance of the preservation of the lawyer-client relationship, [Rule 4.2] is designed to protect clients against overreaching by other lawyers, and to reduce the likelihood that clients will disclose confidential or damaging information without the advice of their counsel.... Rule 4.2 Reporters Note.

These descriptions of the rationale and importance of the rule apply to the scenario addressed in this Opinion. An ACVs participation in a criminal matter can have consequences in closely related civil litigation (e.g., a personal injury or protection from abuse case), particularly when they make statements about the incident and provide information about any resulting injuries.
The ACVs lawyer can advise the ACV regarding the best routes to preserve their position in the litigation. Where a criminal proceeding may have implications for the clients position in civil litigation, they should have the same protection against overreaching by other counsel as well as the advice of their own counsel regarding disclosures made.2

Even if an ACV has not initiated or contemplated civil litigation regarding the underlying events or conduct, an ACV may nonetheless seek the assistance of counsel during the criminal proceedings to receive advice and representation regarding their rights in those proceedings, such as in relation to plea negotiations, obtaining restitution, and testifying in court. An ACV may have concerns about how to protect private information or even the possibility of becoming a target of a criminal investigation themselves.3

It cannot be assumed that a prosecutors and ACVs interests are aligned. A prosecutor has no specific duty to act in the interests of an ACV generally or with respect to any parallel civil proceeding. Rather, their duty is to act in the interest of public safety and to advance the goals and objectives of their office in the context of a criminal matter. While a prosecutor may have concern for the welfare of an ACV and may not engage in conduct that may present harm to the ACV, their public duty is substantially different from that of the ACVs civil litigation attorney.

Accordingly, Rule 4.2 generally prohibits a prosecutor from communicating with an ACV who is represented by counsel in the criminal matter or in a closely related civil action absent the consent of the ACVs attorney. A civil action is closely related to the extent that it arises from the same event or incident and involves common issues of fact such that the proceedings could have relevance to the determination of liability or damages in the other proceedings.4

The prohibition on communications with a represented person only applies in circumstances where the lawyer knows that the person is in fact represented in the matter to be discussed. Rule 4.2, Comment [8]. This means that the limitations on communications with an ACV apply only when the prosecutor has actual knowledge that an ACV is represented in a related action. In the context discussed in this Opinion, it is highly unlikely that a prosecutor would have such awareness unless it is specifically brought to their attention. For this reason, it is incumbent upon the ACVs attorney to make the fact of such representation known to the prosecutor as soon as possible, and particularly if the attorney wishes all communications to the ACV to be directed through them.5

Rule 4.2(a) does permit communication with represented persons where there is legal authority to do so. To preserve the rules key protections, such exception is limited to express grants of authority to make specific communications with others.6 One example of a prosecutors communications expressly authorized by law is the grand jury process, through which a prosecutor may subpoena and question an ACV. M.R.U. Crim. P. 17(i). As such proceedings are secret, the examination of an ACV must necessarily take place without the presence of their counsel. M.R.U. Crim. P. 6(d).

Some Maine prosecutors have taken the position that Maines crime victim statutes provide legal authorization to prosecutors to communicate with ACVs who are represented by counsel. However, such statutes permit only the communications described in those statutes; they do not confer broad legal authority to prosecutors to communicate with represented ACVs. Maines Criminal Code (Title 17-A) at Chapter 48 has several provisions addressing Victims Rights, including specific duties imposed on prosecutors to share information with ACVs. Section 1172 provides: When practicable, the attorney for the State shall make a good faith effort to inform each victim of a crime of the following, including a list of categories of information such as the details of a plea agreement, the right to comment on a plea agreement, the time and place of trial or sentencing, among others. 17-A M.R.S. § 1172(1). Subsection 2 of the statute describes certain pamphlets that an attorney for the state (or a victim and witness support program) must offer to provide to a victim. See also 15 M.R.S. § 812 (requiring attorneys for the state to comply with 17-A M.R.S. § 1172 in the context of plea bargaining); 15 M.R.S. § 6101(1) (imposing notification requirements similar to those in 17-A M.R.S. § 1172(1) for victims of domestic violence, sexual assault, and other crimes resulting in serious physical trauma or serious financial loss).

These statutes impose a duty on prosecutors to provide certain specific information to ACVs regarding the proceedings. To the extent that the laws permit communications with represented ACVs as an exception to Rule 4.2, such authority is limited to the categories of information set forth in the crime victims provisions and communications that are consistent with the purpose of the laws. The authority is not a license to have any other communication with represented ACVs. Thus, if a prosecutor is aware that an ACV is represented with respect to the incident or conduct at issue in the criminal matter, the prosecutor should seek the consent of the represented ACVs attorney before communicating with the ACV on topics beyond the scope of the information to be provided pursuant to Maines crime victims statutes.7

The Commission notes that Rule 4.2(a) also permits an attorney to contact a represented person if authorized to do so by ... a court order. To the extent that a prosecutor believes they have a lawful and important basis to have communication with an ACV but is unsure whether a rule or statute provides the express authority to do so, they can seek such authority through a court order. Comment [6] to Rule 4.2 explains:

A lawyer who is uncertain whether a communication with a represented person is permissible may seek a court order. A lawyer may also seek a court order in exceptional circumstances to authorize a communication that would otherwise be prohibited by this Rule, for example, where communication with a person represented by counsel is necessary to avoid reasonably certain injury.

Rule 4.2 Comment [6].

Finally, the Commission has also considered the potential significance of Rule 4.2(c), which, as Rule 4.2(a) states, addresses the [s]pecific limitations on communications by a prosecutor. That part of the rule, which is unique to Maines version of Rule 4.2, states:

(c) If a prosecutor knows a person is represented with respect to the matter under investigation:

(1) the prosecutor shall not communicate directly with that person absent consent of the other lawyer or a court order; and

(2) The prosecutor shall not extend, through any third person an offer to meet with the prosecutor or an offer to enter into plea negotiations with the prosecutor, or an offer of a plea agreement absent consent of the other lawyer or a court order.

Communications by the prosecutor in the form of advice or instruction to law enforcement agents about a person a prosecutor knows is represented with respect to a matter under investigation are authorized by this Rule and are governed by the substantive law.

Rule 4.2(c)(1) makes clear that the general no contact rule applies to prosecutors in terms of direct contact with a represented person. However, the remaining language of the subsection has little applicability to prosecutors communications with ACVs.

Rule 4.2(c)(2) states that a prosecutor may not use a third person to communicate with the person regarding plea negotiations; such language concerns only represented individuals who are potential targets of the investigation, rather than the complainants. The final sentence of Rule 4.2(c) addresses advice or instruction to law enforcement agents rather than communications with represented persons. The language clarifies that Rule 4.2 is not intended to limit the [t]raditional investigative activities of prosecutors, including advising law enforcement agents of applicable substantive law when agents communicate with individuals during criminal investigations. See 4.2 Reporters Note. Prosecutors are not, however, permitted under Rule 4.2 to initiate, direct, or be proactively involved with the contact that law enforcement officers have with any represented individuals.

Conclusion:

Maine Rule of Professional Conduct 4.2 imposes some limitations on a prosecutors communications with alleged crime victims. If a prosecutor is made aware that the ACV is represented by counsel regarding the criminal matter or closely related civil litigation arising from the same incident or conduct, the prosecutor must obtain the consent of the ACVs counsel before communicating with the ACV unless the communication is expressly authorized by law or court order.

Footnotes

1 See generally ABA Standing Committee on Ethics and Professional Responsibility, Formal Opinion 95-396 (addressing the application of Model Rule 4.2 in criminal matters).

2 See Nebraska Ethics Advisory Opinion for Lawyers No. 09-03 (2009).

3 Ethics opinions from other jurisdictions have concluded that Rule 4.2 applies to prosecutors communications with ACVs and other witnesses in criminal matters where such witnesses retained counsel with respect to their participation in the proceedings. See, e.g., North Carolina State Bar 2009 Formal Ethics Opinion 7, Interviewing an Unrepresented Child Prosecuting Witness in a Criminal Case Alleging Physical or Sexual Abuse of The Child (Approved: January 27, 2012); Oregon State Bar Association Board of Governors Formal Opinion 005-142, Communicating with Represented Persons: Criminal Witnesses (2005); Pennsylvania Bar Association Committee on Legal Ethics and Professional Responsibility, Informal Opinion Number 97-117 (1997). See generally Margaret Garvin & Douglas E. Beloof, Crime Victim Agency: Independent Lawyers For Sexual Assault Victims, 13 Ohio St. J. Crim. L. 67, 77-86 (2015) (discussing the myriad potential roles for a victims attorney during criminal proceedings).

4 Other jurisdictions have similarly defined the relationship between criminal and civil proceedings narrowly in the context of applying Rule 4.2. The Nebraska Lawyers Advisory Committee concluded that Rule 4.2 limits a prosecutors communications with a victim in a criminal case who has retained counsel to represent him in a civil case arising from the same set of facts and involving common issues and evidentiary questions, and that attorney has requested that contact with the victim regarding those aspects of the prosecution be made only through him. Nebraska Ethics Advisory Opinion for Lawyers No. 09-03 at 2723 (2009). The Nebraska opinion further explains that such limitations on a prosecutors communications apply where the criminal and civil matters clearly arise from the same set of facts and involve at least some common issues and the evidence the prosecutor seeks for the criminal prosecution will likewise no doubt be relevant in the associated civil litigation. Id. See also ABA Formal Opinion 95- 396 at 13 (noting that Rule 4.2s requirements apply only where the represented persons representation [are] within the compass of the inquiring lawyer's representation, meaning that there must be a connection between the two representations).

5 Rule 4.2 prosecutor may not make a communication prohibited by this Rule through the acts of another. 4.2 cmt 4. Thus, a prosecutor may not communicate with a represented ACV through non- attorney employees of a county attorneys office, such as a victim witness advocate. Similarly, if such employees are made aware of an ACVs representation by counsel in the criminal proceedings or a related matter, they should inform the prosecutor of such fact to ensure that Rule 4.2 is followed.

6 In Maine Ethics Opinion No. 93, Requesting Release of Medical Records from Adverse Party Represented by Counsel (Feb. 15, 1989), the Commission interpreted the authorized by law exception in MCPR Rule 3.6(j), the predecessor to MRPC 4.2, in the context of a workers compensation matter. The Commission concluded that the statute authorizes an employers attorney to make a request for medical records from a represented employee-claimant because it expressly commands that service of such request be made on the employee, which is a clear directive that the employee, and not the employees lawyer, personally receive the communication. Id. (emphasis added). See also ABA Formal Opinion 95-396 at 2 (stating that such exception is satisfied by a constitutional provision, statute or court rule, having the force and effect of law, that expressly allows a particular communication to occur in the absence of counsel) (emphasis added).

7 See Maine Ethics Opinion No. 93 (noting that the mere fact that direct communication [for a specific purpose] is authorized by statute in no way detracts from the fundamental application of [the no-contact rule] insofar as the rule continues to require that any communication concerning the subject matter of the representation involve opposing counsel.).