Can a criminal defense lawyer interview a child prosecuting witness without the district attorney's consent?

Plain-English summary

A seven-year-old child, Vi, was examined at a pediatric unit where physical evidence of sexual abuse was diagnosed and she identified her stepfather, Mo, as the perpetrator. Mo was arrested and Attorney X was appointed or retained to represent him. Vi's mother sympathized with Mo, refused to believe Vi, and brought Vi to Attorney X's office. The inquiry asked whether Attorney X could interview Vi and obtain a statement without the district attorney's knowledge or consent.

The opinion answered yes. Rule 7.4(a) prohibits communication only with a person known to be represented by counsel about the matter, and a prosecuting witness is not represented by the district attorney for purposes of the rule. Defense counsel therefore need not obtain the DA's consent to interview the witness, and the DA may not instruct the witness not to communicate with defense counsel (Rule 7.9(d)). The opinion qualified this in two ways. First, it would be unethical under Rule 7.4(a) to interview Vi without first determining whether a guardian ad litem or attorney had been appointed for her and, if so, obtaining that person's consent. Second, under Rule 7.4(c) the defense attorney must ensure the witness is not intimidated or led to believe the attorney is disinterested or representing the witness, and must promptly correct any such misunderstanding, a concern the opinion described as particularly important when the witness is a child.

Currency note

This opinion was issued in 1990, before the North Carolina State Bar's adoption of the 2003 revisions to the Rules of Professional Conduct. The provisions it applies (Rule 7.4(a), the no-contact rule; Rule 7.4(c), dealing with an unrepresented person; and Rule 7.9(d), on not obstructing access to a witness) have since been renumbered and revised (the corresponding Model Rules are 4.2, 4.3, and 3.4). 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 Treat this page as historical context, not current guidance.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: Is a prosecuting witness "represented" by the district attorney?

A: No. The opinion concluded that, for purposes of the no-contact rule, a prosecuting witness is not represented by the district attorney.

Q: Can the district attorney tell the witness not to talk to defense counsel?

A: No. The opinion concluded the district attorney may not instruct the witness not to communicate with the defense lawyer, citing Rule 7.9(d).

Q: What must defense counsel check before interviewing a child witness?

A: The opinion concluded counsel must first ascertain whether a guardian ad litem or attorney has been appointed for the child and, if so, obtain that person's consent.

Q: What must counsel avoid during the interview?

A: The opinion concluded counsel must not intimidate the witness or let the witness believe the lawyer is disinterested or representing the witness, and must promptly correct any such misunderstanding (Rule 7.4(c)).

Background and rules framework

The opinion applied North Carolina Rule 7.4(a), the no-contact rule (corresponding to Model Rule 4.2); Rule 7.4(c), governing a lawyer's dealings with an unrepresented person whose interests may conflict with the client's (corresponding to Model Rule 4.3); and Rule 7.9(d), barring a lawyer from instructing a witness to withhold communication (corresponding to Model Rule 3.4). The analysis turned on the status of a prosecuting witness as unrepresented by the prosecutor, with added safeguards where the witness is a child.

Citations and references

Rules of Professional Conduct:

• North Carolina Rule 7.4(a) (communication with a represented party)
• North Carolina Rule 7.4(c) (dealing with an unrepresented person)
• North Carolina Rule 7.9(d) (not instructing a witness to withhold information)
• MR 4.2 (represented persons); MR 4.3 (unrepresented persons); MR 3.4 (fairness to opposing party and counsel)

See also

• NC Ethics Op. RPC 87: interviewing nonparty witnesses
• NC Ethics Op. RPC 67: interviewing employee of adverse corporate party
• NC Ethics Op. RPC 93: interviewing codefendants in criminal cases

Source

• Landing page: https://www.ncbar.gov/for-lawyers/ethics-and-governing-rules/ethics-opinions/opinions/rpc-61/

Original opinion text

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

Editor's Note: This opinion was originally published as RPC 61 (Revised).

Inquiry:

Vi, a seven-year-old child, is carried by her mother, Eve, to the Duke Pediatric Unit, where physical evidence of sexual abuse is diagnosed, and where Vi reports to the physician that her stepfather, Mo, is the perpetrator. Mo is arrested for felonious sex crimes against his young stepdaughter, Vi. Attorney X is appointed or retained to represent Mo. Eve, mother of Vi, expresses that she sympathizes with her husband, Mo, now in jail, and refuses to believe Vi's accusations. Eve brings Vi to Attorney X's office. May Attorney X interview Vi and obtain a statement without the knowledge or consent of the district attorney?

Opinion:

Yes. Rule 7.4(a) of the Rules of Professional Conduct only prohibits communication with a person known to be represented by counsel in regard to the matter in question. The prosecuting witness in a criminal case is not represented, for the purposes of the rule, by the district attorney. For that reason, the lawyer for the defendant need not obtain the consent of the district attorney to interview the prosecuting witness. Nor may the district attorney instruct the witness not to communicate with the defense lawyer. Rule 7.9(d). However, it would be unethical under Rule 7.4(a) for any attorney to question or interview Vi without first ascertaining whether a guardian ad litem or attorney had been appointed for Vi and, if so, without obtaining the consent of the guardian ad litem or attorney. The defense attorney must be careful to ensure that the prosecuting witness is not intimidated or induced to believe the attorney is disinterested or representing the interests of the witness. Rule 7.4(c). Reasonable efforts must be made immediately to correct any such misunderstanding if such becomes apparent. This is particularly important when the prosecuting witness is a child.