May a Vermont defense lawyer interview a represented, unindicted co-conspirator witness without that person's lawyer's consent?
Apply this to your situation
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.
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
- Vermont Ethics Op. 96-07: Former corporate employee
- Vermont Ethics Op. 91-04: Separate clients and witnesses
Source
- Landing page: Vermont Bar Association adverse-contact opinions
- Original PDF: Opinion 94-03
- Vermont Supreme Court rules history, “These rules apply to lawyer conduct after September 1, 1999.”
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