Can a criminal defense lawyer contact the complaining witness directly to suggest a civil compromise of the charges?

Plain-English summary

A lawyer represents a person charged with a criminal offense and wants to contact the complaining witness about the possibility of a civil compromise under ORS 135.703 to 135.709. The opinion asks whether the lawyer may contact the complaining witness to suggest a civil compromise, and answers yes.

The opinion applies Oregon RPC 4.2 (communication with represented persons) and Oregon RPC 4.3 (dealing with unrepresented persons). It relies on OSB Formal Ethics Op. No. 2005-89, which concludes a district attorney may ethically suggest a civil compromise, and reasons the same applies to defense counsel. Because the complaining witness or victim is not represented by the district attorney, contacting the witness does not, in most cases, violate Oregon RPC 4.2. (If the complaining witness is separately represented on the subject of the prosecution, the suggestion would have to go through that lawyer.)

The opinion explains that merely suggesting a civil compromise is not giving legal advice to an unrepresented person, but the defense lawyer must stay sensitive to the line between suggesting the compromise and advising the witness whether to accept it; information must be offered in factual terms rather than as advice. It also concludes the suggestion is not an improper inducement to a witness under Oregon RPC 3.4(b) and is not conduct prejudicial to the administration of justice under Oregon RPC 8.4(a)(4), because a civil compromise is a permissible, statutorily authorized resolution. A footnote notes defense lawyers' separate victim-disclosure duties (ORS 135.970(2)).

In practice

The opinion holds that a statutorily authorized civil compromise can be proposed directly to the complaining witness because the witness is unrepresented for Oregon RPC 4.2 purposes, with the key constraint coming from Oregon RPC 4.3: the lawyer may suggest but not advise. Per the opinion, the analysis turns on whether the witness is separately represented (then go through counsel) and on keeping the communication factual rather than advisory. Verify the current text of Oregon RPC 4.2 and 4.3 and the civil-compromise statutes before relying on any specific point.

Common questions

Q: Can a defense lawyer contact the victim or complaining witness about a civil compromise?

A: Yes. The opinion concludes the complaining witness is not represented by the district attorney, so contacting the witness to suggest a civil compromise does not violate Oregon RPC 4.2.

Q: Can the defense lawyer advise the witness to accept the compromise?

A: No. The opinion concludes the lawyer may suggest the compromise in factual terms but must not give the unrepresented witness advice about whether to accept it, consistent with Oregon RPC 4.3.

Q: Is suggesting a civil compromise an improper inducement to a witness?

A: No. The opinion concludes the suggestion does not violate Oregon RPC 3.4(b) or constitute conduct prejudicial to the administration of justice under Oregon RPC 8.4(a)(4), because a civil compromise is a permissible statutory resolution.

Background and rules framework

The opinion interprets Oregon RPC 4.2 (communication with a represented person) and Oregon RPC 4.3 (dealing with an unrepresented person), corresponding to Model Rules 4.2 and 4.3, in the context of the civil-compromise statutes (ORS 135.703 to 135.709), and references Oregon RPC 3.4(b) and 8.4(a)(4) as limits the suggestion does not cross.

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; no legal advice)

Statutes:

• ORS 135.703 to 135.709 (civil compromise)
• ORS 135.970(2) (defense-lawyer disclosures to victims)

Other opinions cited:

• OSB Formal Ethics Op. No. 2005-89 (rev 2026) (district attorney may suggest a civil compromise)

See also

• OSB Ethics Op. 2005-89: Prosecutors and Civil Compromise
• OSB Ethics Op. 2005-16: Communicating With Unrepresented Persons
• OSB Ethics Op. 2005-132: Contacting Adverse Witnesses in a Civil Case

Source

• Landing page: https://www.osbar.org/ethics/toc.html
• Original PDF: https://www.osbar.org/_docs/ethics/2005-163.pdf