Can a Virginia defense lawyer tell witnesses they need not talk to the prosecutor or need not appear in court?

Plain-English summary

A defense lawyer represented a client charged with unauthorized use of a vehicle; the victims were the defendant's own parents (the mother reported the incident and was the primary driver; the father held title). On the day of trial, the lawyer asked the mother to speak with him before the prosecutor and told her she did not have to speak with the prosecutor. He also told the father, after checking the file for a subpoena, that he was not under subpoena and free to leave, and that his testimony was necessary to prove ownership, so the Commonwealth would lose if he left. The committee was asked whether four specific statements violated the Rules.

The committee analyzes the statements under Rule 3.4(h) (not requesting a non-client to refrain from voluntarily giving relevant information, subject to a narrow civil-matter exception that does not apply in this criminal case) and Rule 4.3(b) (not giving advice, other than to secure counsel, to an unrepresented person whose interests may conflict with the client's). On Rule 3.4(h), the committee finds none of the statements was an actual request to withhold information: asking to speak first was a request for preferential treatment, and telling the mother she need not speak, telling the father he could leave, and assessing the importance of his testimony were advice or statements, not requests. So no statement violated Rule 3.4(h).

On Rule 4.3(b), the committee applies three elements: the communication is on the client's behalf, it includes advice beyond securing counsel, and the person's interests have a reasonable possibility of conflicting with the client's. The request to speak first was not advice, so it did not violate the rule. But the other three statements were advice given on the client's behalf to the parents, whose interests (as crime victims, the reporting party, and a potential civil claimant) had a reasonable possibility of conflicting with the defendant's. The committee notes the family relationship made their true interests less clear, and that the lawyer could have asked the parents whether they wanted to pursue charges or protect their son; absent that clarification, the advice was impermissible under Rule 4.3(b). The committee declines to address obstruction of justice (outside its purview) and notes Rule 1.13 would matter if the client were an entity.

In practice

The opinion holds that, under the Virginia rules as they stood at the time, a lawyer's statement to a witness is measured by whether it is an actual request to withhold information (Rule 3.4(h)) and, separately, whether it is advice to an unrepresented person whose interests may conflict with the client's (Rule 4.3(b)). Per the opinion, statements that stop short of a request to withhold do not violate Rule 3.4(h), but advising adverse unrepresented persons (here, the defendant's parents) violates Rule 4.3(b) unless the lawyer first clarifies that their interests do not conflict with the client's.

Common questions

Q: Can a defense lawyer tell a witness she does not have to talk to the prosecutor?

A: The opinion says that statement did not violate Rule 3.4(h) because it was not a request to withhold information, but it was advice to an unrepresented person with possibly conflicting interests and so violated Rule 4.3(b).

Q: Does Rule 3.4(h) bar a lawyer from telling a witness he is not under subpoena?

A: The opinion says no; on these facts that statement was not an actual request to refrain from giving information, so it did not violate Rule 3.4(h) (whose narrow exception is for civil matters anyway).

Q: When does talking to an unrepresented witness cross Rule 4.3(b)?

A: The opinion says it crosses the line when the lawyer, on the client's behalf, gives advice (beyond securing counsel) to a person whose interests have a reasonable possibility of conflicting with the client's.

Q: Could the lawyer have advised the parents at all?

A: The opinion says he needed to clarify their interests first. Given the family relationship, he could have asked whether they wanted to pursue charges or protect their son; a clear answer that they sided with the son would have let him advise them.

Background and rules framework

The opinion interprets Rule 3.4(h) (Model Rule 3.4, fairness to opposing party and counsel; requesting a non-client to refrain from giving information, with a civil-matter exception) and Rule 4.3(b) (Model Rule 4.3, dealing with unrepresented persons; no advice other than to secure counsel where interests may conflict). It distinguishes pre-2000 opinions decided before Rule 3.4(h) took effect and notes Rule 1.13 would apply to entity clients.

Citations and references

Rules of Professional Conduct:

• Model Rule 3.4 / Virginia Rule 3.4(h) (requesting a non-client to withhold information; civil-matter exception)
• Model Rule 4.3 / Virginia Rule 4.3(b) (advice to unrepresented persons with conflicting interests)

Other opinions cited:

• Virginia LEOs 1426, 1589, 1678, 1736 (advising witnesses; predecessors of Rules 3.4(h) and 4.3(b))

See also

• VA LEO 1814: Undisclosed Recording of Third Parties
• VA LEO 1796: Defending Two Adverse Co-Defendants

Source

• Landing page: https://vsb.org/Site/about/rules-regulations/leo-opinions.aspx
• Original PDF: https://www.vsb.org/common/Uploaded%20files/LEOs/1795.pdf

Original opinion text

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

Committee Opinion
June 30, 2004
LEGAL ETHIC OPINION 1795

IS IT ETHICAL FOR A CRIMINAL DEFENSE
ATTORNEY TO DISCOURAGE A WITNESS
FROM SPEAKING WITH THE
COMMONWEALTH’S ATTORNEY?

I am writing in response to your request for an informal advisory opinion from the Virginia
State Bar Standing Committee on Legal Ethics (“Committee”).
You have presented a hypothetical situation involving a lawyer’s representation of a criminal
defendant. The defense attorney represented a client charged with felony unauthorized use of a
vehicle. The defendant’s mother reported the incident as victim of the crime. On the day of trial,
the Commonwealth Attorney attempted to interview her in the hall of the courthouse, within
earshot of the defense attorney. The defense attorney joined them and asked the victim/mother,
in a terse fashion, if the defense attorney could speak with her. The defense attorney then told
the mother that she did not have to speak to the Commonwealth Attorney.
The Commonwealth Attorney learned from this interview that the mother, while the primary
driver of the vehicle, was not the owner. The titleholder of the vehicle was the defendant’s
father. The victim/father came to the courthouse to discuss the matter with the Commonwealth
Attorney prior to the trial. The Commonwealth Attorney observed the defense attorney speaking
with the two victims/parents. The defense attorney then announced that he planned to go to trial.
The Commonwealth Attorney realized that while the mother was waiting in the courtroom, the
victim/father was not. The mother told the Commonwealth Attorney that the father was in the
hallway. This turned out not to be the case. The defense attorney admitted that he had instructed
the father that he could leave as he was not under subpoena. The defense attorney had also told
the father that as he was a necessary witness to prove ownership of the vehicle, if he left the
courthouse, the Commonwealth would lose the case. The defense attorney later explained he had
checked the court’s file for the subpoena as the father had told him he did not know why he had
to be there.
Under the facts you have presented, you have asked the Committee to opine as to whether it
was a violation of the Rules of Professional Conduct when:
1) The defense lawyer asked the victim/mother if he could speak with her before she spoke
with the Commonwealth Attorney;
2) The defense lawyer told the victim/mother that she did not have to speak with the
Commonwealth Attorney;
3) The defense lawyer told the victim/father that he had checked the court’s file and that as
there was no subpoena, the father was free to leave; and
4) The defense lawyer told the victim/parents that if the father left the courthouse, the
Commonwealth attorney would lose the case due to the absence of the father’s necessary
testimony.

Committee Opinion
June 30, 2004
These comments by the defense attorney should be analyzed in light of two provisions of the
Rules of Professional Conduct. Rule 3.4(h) greatly restricts when an attorney may request that
someone decline to provide relevant information to another party. Rule 4.3(b) restricts an
attorney’s communications with an unrepresented person, such as a witness. Those provisions
state as follows:
RULE 3.4

Fairness To Opposing Party And Counsel

A lawyer shall not:
(h)

Request a person other than a client to refrain from voluntarily giving relevant
information to another party unless:
(1)

the information is relevant in a pending civil matter;

(2)

the person in a civil matter is a relative or a current or former employee or
other agent of a client; and

(3)

the lawyer reasonably believes that the person's interests will not be
adversely affected by refraining from giving such information.

RULE 4.3

Dealing With Unrepresented Persons

(b)
A lawyer shall not give advice to a person who is not represented by a
lawyer, other than the advice to secure counsel, if the interests of such person are
or have a reasonable possibility of being in conflict with the interest of the client.
Rule 3.4(h) prohibits requesting a person other than a client to withhold information from
another party, outside a narrow exception. The Committee notes that the exception only applies
to civil proceedings and is, therefore, inapplicable in the present scenario. Thus, the
communications between this defense attorney and the victim/parents must be reviewed in light
of this particular prohibition.
Previous opinions of this Committee on this topic addressed other related provisions less on
point than Rule 3.4(h); paragraph (h) was not in effect until January 1, 2000, subsequent to the
issuance of those opinions. See, LEOs 1426, 1678, 1736. In considering the permissibility of an
attorney requesting or encouraging a witness from providing information to the opposing side,
Rule 3.4(h) is now the proper authority. The Committee therefore does not base its conclusions
regarding this issue on its prior opinions issued before the adoption of Rule 3.4(h). Outside the
parameter of the above-mentioned exception, Rule 3.4(h) presents a straightforward directive:
A lawyer shall not…request a person other than a client to refrain from
voluntarily giving relevant information to another party.
In the present scenario, the attorney’s first comment to the victim/mother was to speak to him
before speaking to the Commonwealth Attorney. That statement alone merely requested

Committee Opinion
June 30, 2004
preferential treatment; it did not request that she not speak to the Commonwealth Attorney at all.
Thus, that statement did not constitute an impermissible request under this rule.
The attorney’s next statement was to inform the mother that she did not have to speak to the
Commonwealth Attorney. That statement may involve the giving of advice, but it does not
include a clear request that the mother withhold the information from the Commonwealth
Attorney. While it is a possible motivation for that attorney’s comments, his actual statement is
not in the nature of a request. Therefore, this statement did not constitute an impermissible
request under this rule.
The attorney subsequently told the father that as he had not been subpoenaed, he need not
appear in court. This statement similarly does not on its face constitute a request to refrain from
testifying. Thus, it did not constitute an impermissible request under Rule 3.4(h).
The final statement at issue of this attorney was his assessment that the father’s testimony was
essential to the Commonwealth’s case. Again, this statement, while containing advice, did not
contain an impermissible request under Rule 3.4 (h). While the Committee can speculate as to
the motives of the defense attorney in providing the advice he did to these individuals, the
Committee sees no statement in those communications that went as far as an actual request to
withhold information from the Commonwealth Attorney or at trial. Accordingly, the Committee
opines that none of the defense attorney’s statements violated Rule 3.4(h).
Whenever an attorney, on behalf of a client, is communicating with an unrepresented person,
he must be mindful of the broad prohibition against providing advice found in Rule 4.3(b).
Thus, in prior LEOs 1426 and 1589, this Committee applied Rule 4.3(b)’s predecessor, DR 7103(A)(2), to prohibit a lawyer from advising a witness that he need not speak with opposing
counsel. While not presenting a complete bar, Rule 4.3(b) does restrict communications with an
unrepresented person in many instances. Communications with an unrepresented person are
prohibited in a particular instance when each of the following characteristics is present:
1) The communication must be on behalf of a client;
2) The communication must include advice, other than the advice to secure
counsel; and
3) The interests of the person must be or have a reasonable possibility of being
in conflict with the interest of the client.
In applying Rule 4.3’s prohibition to the communications in the present hypothetical, each
prong must be considered. In each conversation with these victim/parents, the attorney’s
comments were on behalf of the attorney’s client, a first prong of the prohibition.
In applying the second prong of this prohibition, the statements must each be reviewed to
determine whether the attorney provided advice. The Committee notes that the rule is not
triggered solely by legal advice. The attorney first spoke to the victim/mother by requesting that
she speak with him prior to speaking with the Commonwealth Attorney. Even if such a request

Committee Opinion
June 30, 2004
was made in a terse fashion, it remains a request, not advice of any sort. Rule 4.3(b) does not
prohibit that request. However, the defense attorney did not stop at that point in his
communication; rather, he went on to tell the mother that she was not required to speak with the
Commonwealth Attorney. The Committee opines that this particular comment meets the second
prong; the defense attorney was providing advice to the mother with that statement. The defense
attorney then proceeded to inform the victim/father that the attorney had checked the file, there
was no subpoena, and thus the father was not required to appear in court. The defense attorney’s
statement to the father that he was free to leave is a statement of advice and thus meets the
second prong. Finally, the defense attorney told both parents that the father’s testimony was
necessary for the Commonwealth’s case so that if he failed to appear, the Commonwealth would
lose. Again, the Committee finds advice in that communication as the defense attorney is
advising the parents as to the consequences of whether or not the father testified. Three of the
four statements of this defense attorney were made on behalf of his client and provided advice.
The third prong of a Rule 4.3(b) violation is that the interests of the unrepresented persons “are
or have a reasonable possibility of being in conflict with the interest of the client.” Thus, the
prohibition is broader than just actual adverse parties. Here, all of the defense attorney’s
statements at issue were made to the victims of the client’s crime. Ordinarily, while crime
victims are not the clients of the prosecutor, they do nonetheless have interests adverse to those
of the defendant. However, in this particular hypothetical the true interest of the two crime
victims is less clear cut as they are the parents of the defendant. The mother was the person who
originally reported the incident and was the primary user of the vehicle, and the father, as
titleholder of the car, may potentially have had civil remedies against the defendant. In
communicating with these individuals, this defense attorney was speaking with people whose
interests were or possibly could have been in conflict with those of the defendant. The attorney
therefore may not without further clarification provide advice to these individuals. However,
given the family relationship between the “victims” and the defendant, it would not have been
unreasonable for this attorney to ask these parents about their interest in the matter: did they want
to pursue criminal charges regarding their vehicle or did they instead want to protect their son
from prosecution? If the lawyer had obtained clear indication of the latter from the parents, he
would no longer have had to treat them as persons whose interests “are or have a reasonable
possibility of being in conflict with the interest of the client,” and could have provided them the
advice in question. The defense attorney needs to clarify the interests of these unrepresented
persons before giving any advice.
The request to speak with the defense attorney before the Commonwealth Attorney was not in
violation of Rule 4.3(b) as it did not provide any advice. However, under the limited facts
provided, each of the other statements made by this defense attorney to the victim/parents were
impermissible under that rule as the statements were made on behalf of a client and included
advice to unrepresented people with interests that have a reasonable possibility of being in
conflict with those of the client.
The Committee notes that the materials you provided with your request suggested authorities
that do not form the foundation of this Committee’s conclusions. Specifically, your materials
suggest that the conversations between the defense attorney and these victim/parents qualify as
an attorney/client relationship and therefore are the source of a conflict of interest for this

Committee Opinion
June 30, 2004
defense attorney. The Committee did not find facts in the hypothetical to support the formation
of an attorney/client relationship; accordingly, the Committee did not view these conversations
from a conflicts perspective but rather from the perspective of conversations with unrepresented
persons.
Your materials also raise the issue of whether these conversations constitute the crime of
obstruction of justice under Va. Code §18.2-460 on the part of this attorney. Applying the
Virginia Code is outside the purview of this Committee; therefore, this Committee declines to
opine on that issue.
In resting its conclusions on application of Rules 3.4 and 4.3, this Committee notes that all
such conclusions are limited to this hypothetical with an individual client. Were a similar
scenario to involve an entity client, the analysis would need to extend to include the impact of
Rule 1.13, which governs representation of organizations.
This opinion is advisory only, based only on the facts you presented and not binding on any
court or tribunal.
Committee Opinion
June 30, 2004