Can one defendant's lawyer interview the other represented co-defendants charged in the same transaction without first getting their lawyers' consent?

Plain-English summary

Three defendants were indicted for a felony, with separate indictments docketed separately but all arising from the same alleged transaction, and each represented by separate counsel. The state's case against one defendant depended on proving he acted in concert with the other two, even though he was not apprehended at the scene. The Committee was asked whether this defendant's attorney could contact and interview the other two defendants without first obtaining the consent of their attorneys.

The Committee concluded that he could not. It quoted Texas Canon 9, which provides that a member should not in any way communicate upon the subject of controversy with a party represented by counsel. Because the indictments arose out of one transaction, each defendant would be considered "a party," so it would violate Canon 9 to communicate with such a party without first obtaining the consent of that party's attorney. Citing Drinker, Legal Ethics 202, the Committee noted the long-settled rule that, where several persons are accused of related thefts, the prosecuting attorney may not interview another represented defendant without that defendant's counsel's consent, and held the same rule applies to defense counsel in related crimes. The vote was 9-0.

Currency note

This opinion was issued in 1970, under the former Texas Canons of Ethics, which the Texas Disciplinary Rules of Professional Conduct replaced effective January 1, 1990. Communication with a person represented by counsel is now governed by Texas Rule 4.02 and ABA Model Rule 4.2. 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 Treat this page as historical context, not current guidance.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: May a lawyer interview represented co-defendants without their counsel's consent?

A: No. The Committee concluded that where co-defendants are charged over one transaction and each is represented, the attorney for one may not interview the others without the consent of their counsel.

Q: Why is each co-defendant treated as a "party"?

A: The Committee reasoned that because the indictments arose out of one transaction, each defendant would be considered "a party" within Canon 9, even though the cases were docketed separately.

Q: Does the same rule apply to prosecutors?

A: Yes. The Committee noted the long-settled rule that a prosecutor may not interview another represented defendant in related cases without counsel's consent, and applied the same rule to defense counsel.

Background and rules framework

The opinion interprets former Texas Canon 9, barring communication on the subject of the controversy with a party represented by counsel. The modern analog is Texas Rule 4.02 and ABA Model Rule 4.2 (communication with a person represented by counsel).

Citations and references

Rules of Professional Conduct:

• MR 4.2 (communication with a person represented by counsel), as the modern analog
• Texas Canon 9 (former Texas Canons of Ethics)

Other references:

• Drinker, Legal Ethics 202 (rule barring interview of a represented co-defendant without counsel's consent)

See also

• TX Ethics Op. 355: Advising a Represented Opposing Party at a Deposition
• TX Ethics Op. 358: Copying the Opposing Party on Letters to Opposing Counsel
• TX Ethics Op. 461: Contacting Employees of a Represented Corporate Defendant

Source

• Landing page: https://www.legalethicstexas.com/resources/opinions/opinion-352/
• Original PDF: https://tcle-web.s3.amazonaws.com/public/documents/Opinion_352.pdf

Original opinion text

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

QUESTION PRESENTED

Three defendants are indicted for a felony crime. Indictments are separate and the cases are docketed separately, but all indictments arise out of the same alleged transaction. Each defendant is represented by separate attorneys. The state's case against one of the defendants depends on the state proving that this defendant was acting in concert with the other two while the crime was being committed, although this defendant was not apprehended at the site of the crime. May this defendant's attorney contact and interview the other two defendants without first obtaining the consent of the attorneys representing the other two defendants?

23 Baylor L. Rev. 894 (1972)

NEGOTIATIONS WITH OPPOSING PARTY - INTERVIEWING WITNESS REPRESENTED BY ATTORNEY
When three persons are indicted for one alleged transaction, and all three are represented by an attorney, the attorney for one may not interview any of the others without the consent of the attorney representing the party sought to be interviewed.

Canon 9

Texas Canon 9 provides: "A member should not in any way communicate upon the subject of controversy with a party represented by counsel." Since the indictments arose out of one transaction, each defendant would be considered "a party." Therefore, it would be a violation of Canon 9 for an attorney to communicate with a party to the transaction without first obtaining the consent of the attorney representing this party. It has long been held that where several persons are accused of related thefts, the prosecuting attorney may not interview, in proceeding against one of them, another defendant who is represented by counsel without obtaining the consent of the attorney representing the party sought to be interviewed. Drinker, Legal Ethics, 202. The same rule would apply to the attorney representing the defendants in related crimes. (9-0)

Tex. Comm. On Professional Ethics, Op. 352 (1970)