Can a criminal defense lawyer interview a represented codefendant or cooperating witness over the objection of that person's lawyer, if the person consents?

Plain-English summary

The opinion addressed three variations of a defense lawyer seeking to interview a represented codefendant or cooperating witness whose own lawyer had refused permission. In the first, a cooperating defendant (Smith) who had pleaded guilty and agreed to testify implicated another suspect (Jones); after Smith's lawyer refused to allow an interview, Jones's lawyer sent an investigator who interviewed Smith with Smith's consent. The opinion concluded this violated the no-contact rule (then Rule 7.4(a)), because Smith, although not technically a party to the case against Jones, was represented by counsel concerning the same matter, so Jones's lawyer could not discuss the case with Smith after being refused.

In the second variation, codefendants in a marijuana conspiracy were charged in separate indictments but named as coconspirators; the opinion concluded that even though they were not yet joined as parties, they were parties known to be represented in the same matter and could not be interviewed without their lawyers' consent. In the third, the codefendants were charged in a single federal indictment; the opinion concluded they were all parties to the same action and each represented, so counsel could not interview them over their lawyers' objection, and the codefendants' apparent willingness to talk did not change the result.

Currency note

This opinion was issued in 1990, before North Carolina's adoption of the 2003 revisions to the Rules of Professional Conduct, and it cites the rule numbering then in effect (the no-contact rule was then Rule 7.4). 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 Treat this page as historical context, not current guidance.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: Could a lawyer interview a cooperating witness after that witness's lawyer refused permission?

A: No. Opinion #1 concluded the no-contact rule barred the interview, because the cooperating witness was represented by counsel concerning the same matter even though not a party to the case in question.

Q: Did it matter that the codefendants were charged in separate indictments?

A: No. Opinion #2 concluded that even before joinder, codefendants named as coconspirators were parties known to be represented in the same matter and could not be interviewed without their lawyers' consent.

Q: Did the codefendants' willingness to talk change the result?

A: No. Opinion #3 concluded counsel could not interview represented codefendants over their lawyers' objection, regardless of the codefendants' apparent willingness to speak.

Background and rules framework

At the time, the opinion applied North Carolina's no-contact rule, then Rule 7.4(a), which prohibited a lawyer from communicating, or causing another to communicate, about the subject of the representation with a person the lawyer knew to be represented by counsel in the matter, absent that lawyer's consent. In current numbering the subject matter corresponds to Model Rule 4.2.

Citations and references

Rules of Professional Conduct:

• N.C. Rule 7.4(a) (then in effect): the no-contact rule
• Current counterpart: Model Rule 4.2 (communication with represented persons)

See also

• NC State Bar 2003 FEO 4: Investigator Contact
• ABA Formal Op. 95-396: The No-Contact Rule (4.2)

Source

• Landing page: https://www.ncbar.gov/for-lawyers/ethics-and-governing-rules/ethics-opinions/opinions/rpc-93/

Original opinion text

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

Inquiry #1:

Defendant Smith is charged in a one-count indictment with first degree rape. Pursuant to a plea agreement, Smith enters a plea of guilty to second degree rape. The agreement also calls for Smith to give truthful testimony if called upon to do so. The Government agrees to make known the extent of Smith's cooperation at time of sentencing. In the process of cooperating pursuant to the plea agreement, Smith gives information which tends to implicate Jones in the same offense of first degree rape. Smith has not been sentenced.

Jones is then charged in a separate indictment with first degree rape. Jones' lawyer telephones Smith's lawyer and asks permission to interview Smith. Smith's lawyer refuses. Jones' lawyer nevertheless sends his investigator to interview Smith. After being informed of the identity of the investigator and his employer, and for whom he is working (Jones), Smith consents to the interview. In the process of the interview, Smith gives a statement which completely exonerates Jones on the rape charge by telling a story which conclusively indicates that the victim consented to intercourse.

Jones' lawyer takes the report of interview to the prosecutor and tells him that he may as well go ahead and dismiss the indictment against Jones. Prosecutor telephones Smith's lawyer, who tells him that he forbade the interview. Prosecutor then accuses Jones' lawyer of unethical conduct.

Has Jones' lawyer violated Rule 7.4?

Opinion #1:

Yes. Rule 7.4(a) provides that a lawyer shall not "communicate or cause another to communicate about the subject of the representation with a party the lawyers knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized by law to do so." The comment to the Rule indicates that the Rule "covers any person, whether or not a party to a formal proceeding, who is represented by counsel concerning the matter in question." In this situation Smith, though not technically a party to the criminal case against Jones, is obviously represented by counsel concerning the matter of the alleged rape. Having been refused authority to interview Smith by Smith's lawyer, Jones' lawyer could not then ethically discuss the case with Smith.

Inquiry #2:

Smith, Jones, and Williams are indicted for conspiracy to traffic in marijuana. Pursuant to State practice, each is indicted in separate indictments. However, the conspiracy counts name Smith, Jones, and Williams as coconspirators. The State has not yet moved to join the indictments for trial. Each defendant retains counsel.

Williams' attorney asks the attorneys for Smith and Jones for permission to interview their clients. They refuse. Later, Williams' attorney learns that Smith and Jones wish to talk to him. Williams' attorney relays this information to the attorneys for Smith and Jones. They still refuse to permit the interviews.

Despite these objections, Williams' attorney and his investigator meet with Smith and Jones. They tell Smith and Jones that they are employed by Williams, that they are working for Williams' best interests in the case, that Smith and Jones do not have to talk, that they are free to call their lawyers if they wish before speaking to him, and that they are free to terminate the interview at any time. Smith and Jones consent to the interview.

Has Williams' attorney violated Rule 7.4 by conducting the interviews of the codefendants in light of refusal by counsel to permit same?

Opinion #2:

Yes, although technically Smith, Jones, and Williams have not yet been made parties to the same criminal cases, they are "parties" known to be represented by counsel in the same matter, a conspiracy to traffic in marijuana. As such, they may not be interviewed concerning the case without their lawyer's consent.

Inquiry #3:

The facts are the same as stated in Inquiry No. 2, except that Smith, Jones, and Williams are indicted in federal district court for conspiracy to traffic in marijuana. All are indicted in the same indictment.

Has Williams' attorney violated Rule 7.4 by conducting the interviews of the codefendants in light of refusal by counsel to permit same?

Opinion #3:

Yes. Under the facts stated, Smith, Jones, and Williams are all parties to the same action and are each represented by counsel. Williams' attorney may not interview Smith or Jones over the objection of their attorneys. The fact that Smith and Jones appear to be willing to discuss the matter with Williams' attorney does not change the answer. Rule 7.4(a).