Can a prosecutor arrange for a third party to secretly tape a represented suspect without the suspect's lawyer's consent?
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This page answers the general question as of 1986. Ezel answers yours: whether it's allowed on your facts, under the current Virginia Rules of Professional Conduct, with citations.
Plain-English summary
The committee addressed a commonwealth's attorney who wanted to reach an uncharged suspect, known to be represented by counsel, by having another suspect tape telephone conversations with him, and who also considered having the police department develop and implement such a taping plan. The committee opined that both were improper without the consent of the lawyer representing the uncharged suspect: communicating with the represented suspect through the agency of the taping intermediary, and arranging for the police to develop and implement the taping plan.
The committee grounded the conclusion in DR 1-102(A)(2), barring a lawyer from circumventing a disciplinary rule through the actions of another, and DR 7-103(A)(1), the prosecutor's communication restraint, citing LE Op. 550 and LE Op. 233.
Currency note
This opinion was issued in 1986, under Virginia's former Code of Professional Responsibility, before the Virginia State Bar's adoption of the Rules of Professional Conduct effective January 1, 2000. The committee note records that Comment [2] of current Rule 4.2 would seem to authorize law enforcement to initiate pre-indictment investigative contacts with a represented uncharged suspect, so a prosecutor's involvement, though condemned in LEO 848, would be proper under Rule 4.2; the note also cites LE Op. 1738 on when lawyers or their agents may secretly tape conversations they participate in. 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 Treat this page as historical context, not current guidance.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 use a cooperating suspect to tape a represented suspect?
A: Under this 1986 opinion, no. The committee found it improper to communicate with the represented uncharged suspect through the agency of another suspect taping the calls, absent the consent of the suspect's lawyer.
Q: Did it matter that the police, rather than the prosecutor, would run the taping?
A: The committee found it equally improper for the commonwealth's attorney to arrange for the police department to develop and implement the taping plan without the suspect's lawyer's consent.
Q: How does the current Rule 4.2 treatment differ?
A: The committee note states that Comment [2] of current Rule 4.2 would seem to authorize law enforcement pre-indictment investigative contacts with a represented uncharged suspect, so the prosecutor's involvement condemned here would be proper under Rule 4.2.
Background and rules framework
The opinion applies DR 1-102(A)(2), which bars a lawyer from circumventing a disciplinary rule through the acts of another, together with DR 7-103(A)(1), the former Code's restraint on a prosecutor's contacts. The committee note maps the question onto current Virginia Rule 4.2 (communication with represented persons) and its Comment [2], the rule corresponding to ABA Model Rule 4.2.
Citations and references
Rules of Professional Conduct:
- DR 1-102(A)(2) (circumventing a disciplinary rule through another) (former Code)
- DR 7-103(A)(1) (prosecutor's communication restraint) (former Code)
- Virginia Rule 4.2 and Comment [2] / ABA Model Rule 4.2 (communication with represented persons)
Other opinions cited:
- LE Op. 550; LE Op. 233 (relied on by the committee)
- LE Op. 1738 (secret taping by lawyers or their agents; cited in the committee note)
See also
Source
- Landing page: https://vsb.org/Site/about/rules-regulations/leo-opinions.aspx
- Original PDF: https://www.vsb.org/common/Uploaded%20files/LEOs/0848.pdf
Original opinion text
Reproduced from the official source for research purposes. The linked source is authoritative.
LEGAL ETHICS OPINION 848
COMMONWEALTH’S ATTORNEY –
COMMUNICATING WITH ADVERSE
PARTY.
It is improper for a commonwealth's attorney to communicate with an uncharged
suspect, who is represented by counsel, through the agency of another suspect who tapes
telephone conversations with the uncharged suspect, without the consent of the attorney
representing the uncharged suspect.
It is improper for a commonwealth's attorney to arrange for the police department to
develop and implement a plan whereby a suspect would tape telephone conversations
with an uncharged suspect, without the consent of the attorney representing the
uncharged suspect. [DR:1-102(A)(2), DR: 7-103(A)(1); LE Op. 550 and LE Op. 233]
Committee Opinion
October 9, 1986
Legal Ethics Committee Notes. – Comment [2] of Rule 4.2 would seem to authorize
law enforcement to initiate pre-indictment investigative contacts with an uncharged
suspect known to be represented by counsel and therefore a prosecutor’s involvement in
such activity, though condemned in L E Op. No. 848, would be proper under Rule 4.2. In
addition, in L E Op. No. 1738, the Bar indicated that lawyers or their agents may secretly
tape record telephone conversations in which they participate, but only in situations
involving criminal or housing discrimination investigations or if the lawyers are
protecting themselves from possible criminal action.
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