May a Vermont defense lawyer interview a represented, unindicted co-conspirator witness without that person's lawyer's consent?

Short answer Opinion 94-03 requires the witness's lawyer's consent because the witness is represented in a closely related appeal arising from the same alleged conspiracy.
Bar
VTBAR
Issued
1994

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This page answers the general question as of 1994. Ask about yours and see what the current Vermont Rules of Professional Conduct say for your facts, with citations.

Disclaimer: Advisory only. Not binding precedent.
About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official ethics opinion. The original opinion (linked on this page as a PDF) is the authoritative source for any reliance.
View original ethics opinion (PDF)

Plain-English summary

A person convicted in a conspiracy matter was represented on appeal and expected to testify against another accused person. The defense lawyer for the latter wanted to interview the witness without asking appellate counsel, reasoning that the witness was not a party in the new prosecution.

The committee read former DR 7-104(A)(1)'s phrase “in that matter” to reach closely related proceedings arising from the same underlying conduct, even if the witness was not formally a party in the defendant's case. Because the proposed interview concerned the conspiracy for which the witness had counsel, the committee required that counsel's consent.

Currency note

This opinion was issued in 1994 under Vermont's former Code of Professional Responsibility. The Vermont Supreme Court's rules history states that the Rules of Professional Conduct applied to lawyer conduct after September 1, 1999. Later amendments or opinions may have changed the analysis. Treat this opinion as historical context and verify current rules before relying on it.

Common questions

Q: Did the witness's lack of party status permit direct contact?

A: No. The committee focused on the closely related subject of the witness's represented appeal and the defendant's prosecution.

Q: Could defense counsel interview the witness after obtaining consent?

A: The opinion said the witness's attorney's consent was required before discussing facts concerning the alleged conspiracy.

Background and rules framework

The opinion applied former DR 7-104(A)(1)'s represented-person restriction beyond formal party status and cited Vermont Opinion 91-4's treatment of adverse witnesses.

Citations and references

Rules of Professional Conduct:

  • Vermont Code of Professional Responsibility DR 7-104(A)(1) and EC 7-18

Other opinions cited:

  • Vermont Opinion 91-4, Synopsis C

See also

Source

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