Can a Tennessee prosecutor communicate with a criminal defendant the prosecutor knows is represented by counsel, even if the defendant requests the contact?

Plain-English summary

The opinion addressed a state prosecutor's ethical obligations when a defendant attempts to communicate with the prosecutor, or seeks an interview with the prosecutor, without the knowledge or consent of the defendant's attorney. It applied DR 7-104(A)(1), which barred a lawyer from communicating with a person of adverse interest known to be represented by a lawyer in the matter without that lawyer's prior consent, tracing the prohibition to Canon 9 of the 1908 ABA Canons of Ethics and noting that Model Rule 4.2 is substantially identical. The opinion explained the rule's purpose as protecting the integrity of the client-lawyer relationship by shielding the represented party from the opposing lawyer's superior knowledge and skill, citing Powell v. Alabama, United States v. Thomas, State v. Yatman, and Tennessee Bar Association v. Freemon.

The opinion held that a prosecutor may not circumvent the prohibition by using a law enforcement official, or by advising someone else to communicate in a way that would be impermissible if the prosecutor did it directly, citing People v. Hobson and Shantz v. Eyman. It found the prohibition applies even when the defendant has requested the interview, citing People v. Green and State v. Britton, and even where the interview concerns the investigation of other criminal activity, citing In Re Burrows. The opinion also cited ABA Informal Opinion 1373, which held that a prosecutor violated DR 7-104(A)(1) by forwarding plea-bargain letters addressed to defense counsel directly to the defendant. On that basis, the opinion concluded that a state prosecutor is ethically obligated to avoid any and all communications with defendants without the knowledge and consent of the defendant's attorney.

Currency note

This opinion was issued in 1987, before Tennessee's adoption of the 2003 Rules of Professional Conduct, which replaced the former Code of Professional Responsibility. 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 Treat this page as historical context, not current guidance.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 prosecutor speak with a represented defendant if the defendant asked for the conversation?

A: No. The opinion held the prohibition on communicating with a represented defendant applies even when the defendant requests the interview.

Q: Could a prosecutor have a police officer contact the represented defendant instead?

A: No. The opinion held a prosecutor may not circumvent the no-contact rule by using a law enforcement official or directing anyone else to make a contact the prosecutor could not make directly.

Q: Did the prohibition apply only to the charged matter?

A: No. The opinion found the prohibition applies even where the interview concerns an inquiry into uncharged conduct or another defendant's criminal investigation.

Background and rules framework

The opinion applied former DR 7-104(A)(1) (bar on communicating with a represented adverse party without that party's counsel's consent), which it traced to Canon 9 of the 1908 ABA Canons of Ethics. The modern analog, which the opinion describes as substantially identical, is Model Rule 4.2 / Tennessee RPC 4.2 (communication with a person represented by counsel).

Citations and references

Rules of Professional Conduct (former Code):

• DR 7-104(A)(1) (bar on communicating with a represented adverse party without counsel's consent). Modern analog: Model Rule 4.2 / Tennessee RPC 4.2 (substantially identical, per the opinion)

Cases:

• Powell v. Alabama, 287 U.S. 45 (1932)
• United States v. Thomas, 474 F.2d 110 (10th Cir.), cert. denied, 412 U.S. 932 (1973)
• State v. Yatman, 320 So. 2d 401 (Fla. Dist. Ct. App. 1975)
• Tennessee Bar Association v. Freemon, 50 Tenn. App. 567, 362 S.W.2d 828 (1961)
• People v. Hobson, 39 N.Y.2d 479, 348 N.E.2d 894, 384 N.Y.S.2d 419 (1976), no circumventing the rule through a law enforcement official
• Shantz v. Eyman, 418 F.2d 11 (1969), cert. denied, 397 U.S. 1021 (1970)
• People v. Green, 405 Mich. 273, 274 N.W.2d 448 (1979), prohibition applies even at the defendant's request
• State v. Britton, 157 W. Va. 711, 203 S.E.2d 462 (1974)
• In Re Burrows, 291 Or. 135, 629 P.2d 820 (1981), prohibition applies even when the interview concerns other criminal activity

Other opinions cited:

• ABA Informal Opinion 1373 (Dec. 2, 1976), prosecutor violated the rule by forwarding plea-bargain letters to the defendant directly

See also

• ABA Formal Op. 95-396: Communications With Represented Persons
• CA Bar Op. 1979-049: District Attorney May Not Communicate With a Represented Defendant
• Oregon State Bar Op. 2005-126: Communicating With Represented Persons in Prosecutions

Source

• Landing page: https://www.tbpr.org/ethic_opinions/87-F-112

Original opinion text

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

87-F-112 - Prosecutor approached by Defendant without knowledge of defendant's attorney

BOARD OF PROFESSIONAL RESPONSIBILITY OF THE SUPREME COURT OF TENNESSEE

FORMAL ETHICS OPINION 87-F-112

Inquiry is made concerning the ethical obligations of a state prosecutor when a defendant attempts to communicate with the prosecutor, or seeks an interview with the prosecutor, without the knowledge or consent of the defendant's attorney.

Disciplinary Rule 7-104(A)(1) of the Code of Professional Responsibility embodied in Tennessee Supreme Court Rule 8 prohibits a lawyer from communicating with one of adverse interest known to be represented by a lawyer in the matter without the prior consent of the lawyer representing the adverse party.

The prohibition on communicating with a person known to be represented by another lawyer without that lawyer's consent has been in existence since the adoption of Canon 9 by the American Bar Association on August 27, 1908. Rule 4.2 of the Model Rules of Professional Conduct adopted by the American Bar Association on August 2, 1983 is substantially identical to DR 7-104(A)(1).

The prohibition is intended to preserve the integrity of the client-lawyer relationship by protecting the represented party from the superior knowledge and skill of the opposing lawyer. See Powell v. Alabama, 287 U.S. 45 (1932); United States v. Thomas, 474 F.2d 110 (10th Cir.) cert. denied, 412 U.S. 932 (1973); State v. Yatman, 320 So. 2d 401 (Fla. Dist. Ct. App. 1975); Tennessee Bar Association v. Freemon, 50 Tenn. App. 567, 362 S.W.2d 828 (1961).

A prosecutor may not circumvent the prohibition through the use of a law enforcement official or by advising another to communicate in a manner which would be impermissible if engaged in by the prosecutor. See People v. Hobson, 39 N.Y. 2d 479, 348 N.E.2d 894, 384 N.Y.S. 2d 419 (1976); Shantz v. Eyman, 418 F.2d 11 (1969) cert. denied, 397 U.S. 1021 (1970).

The prohibition applies even though the defendant has requested the interview, e.g., People v. Green, 405 Mich. 273, 274 N.W.2d 448 (1979); State v. Britton, 157 W. Va. 711, 203 S.E.2d 462 (1974), or where the interview is in connection with the investigation of other criminal activity, e.g., In Re Burrows, 291 Or. 135, 629 P.2d 820 (1981).

ABA Informal Opinion 1373 (Dec. 2, 1976) held that a prosecutor violated DR 7-104(A)(1) by forwarding to the defendant copies of letters to defense counsel containing plea bargain offers.

A state prosecutor is ethical obliged to avoid any and all communications with defendants without the knowledge and consent of the defendant's attorney.

This 28th day of September, 1987.

ETHICS COMMITTEE:

Michael E. Callaway

Charles T. Herndon III

G. Wilson Horde

APPROVED AND ADOPTED BY THE BOARD