Can a prosecutor or a co-defendant's lawyer contact a represented defendant about a separate, unrepresented charge, and may a prosecutor use undercover agents against a represented suspect before charging?

Plain-English summary

A prosecutor has charged A with a drug offense, on which A is unrepresented, and has separately charged A and B jointly with a bank robbery, on which both A and B are represented. The prosecutor is also considering charging C, has had C called to testify before a grand jury, knows C is represented on the potential charges, and wants to use undercover agents or informants to gather information from C before deciding whether to charge. The opinion answers three questions about contacting these defendants.

The opinion applies Oregon RPC 4.2, which bars a lawyer from communicating, or causing another to communicate, about the subject of a representation with a person the lawyer knows to be represented on that subject, absent the other lawyer's consent or legal authorization, and Oregon RPC 4.3 on dealing with unrepresented persons. These rules apply in criminal as well as civil cases. The opinion concludes B's lawyer cannot talk to A about the bank robbery without the consent of A's lawyer (question 1, no), and that a prosecutor may not talk to A about the drug charge on which A is unrepresented while A is represented on the robbery, without the consent of A's robbery counsel (question 2, no). The reason is that resolving one charge can, through plea bargaining, affect the other, so the two matters are practically intertwined.

On question 3, the opinion relies on the "authorized by law" exception in Oregon RPC 4.2(b). It agrees with most courts that prosecutors may engage in preindictment, prearrest, and other investigative contacts with suspects even when the suspects are known to be represented, so a prosecutor may use undercover agents or informants to investigate C. The opinion draws the line at using go-betweens to circumvent defense counsel in discussing or negotiating a plea bargain, which prosecutors may not do.

In practice

The opinion holds that, under the current Oregon rules, RPC 4.2 reaches across separate criminal charges against the same defendant when the matters can influence each other, so contact about an "unrepresented" charge still needs the consent of counsel on the related, represented charge. Per the opinion, the investigative exception lets prosecutors run undercover preindictment operations against represented suspects, but it does not extend to plea negotiations conducted through intermediaries. Verify the current text of Oregon RPC 4.2 and 4.3 before relying on any specific point.

Common questions

Q: Can a co-defendant's lawyer talk directly to another represented defendant?

A: No. The opinion concludes B's lawyer cannot talk to A about the bank-robbery charge without the consent of the lawyer who represents A on that charge, under Oregon RPC 4.2.

Q: Can a prosecutor talk to a defendant about a charge on which the defendant has no lawyer?

A: Not if the defendant is represented on a related charge. The opinion concludes the prosecutor may not contact the defendant about the unrepresented charge without the consent of counsel on the represented matter, because plea bargaining can link the cases.

Q: Can a prosecutor use undercover agents against a represented suspect before charging?

A: Yes, qualified. Per the opinion, the "authorized by law" exception in Oregon RPC 4.2(b) permits preindictment investigative contacts, but prosecutors may not use go-betweens to bypass defense counsel on a plea bargain.

Background and rules framework

The opinion interprets Oregon RPC 4.2 (communicating with a represented person, including the "authorized by law" exception) and Oregon RPC 4.3 (dealing with an unrepresented person), corresponding to Model Rules 4.2 and 4.3, as applied to criminal prosecutions.

Citations and references

Rules of Professional Conduct:

• Oregon RPC 4.2 / Model Rule 4.2 (communication with represented persons)
• Oregon RPC 4.3 / Model Rule 4.3 (dealing with unrepresented persons)

Cases:

• In re Burrows, 291 Or 135, 629 P2d 820 (1981)
• In re Hostetler, 291 Or 147, 629 P2d 827 (1981)
• United States v. Ryans, 903 F2d 731 (10th Cir 1990)
• United States v. Hammad, 902 F2d 1062 (2d Cir 1990)

Other opinions cited:

• OSB Formal Ethics Op. No. 2005-6 (rev 2026) (communicating with represented persons)

See also

• OSB Ethics Op. 2005-6: Communicating With Represented Persons
• OSB Ethics Op. 2005-80: Contacting Corporate Employees
• OSB Ethics Op. 2005-82: Representing Multiple Criminal Defendants

Source

• Landing page: https://www.osbar.org/ethics/toc.html
• Original PDF: https://www.osbar.org/_docs/ethics/2005-126.pdf