When a complainant in a criminal matter is represented by a lawyer, may the prosecutor copy the complainant directly on a response sent to that lawyer?
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This page answers the general question as of 1984. Ask about yours and see what the current Wisconsin Rules of Professional Conduct say for your facts, with citations.
Plain-English summary
Opinion E-84-15 addressed a situation in which a lawyer represents a complainant in a criminal matter and asks the prosecutor's office to respond regarding its handling or review of the matter. The question was whether the prosecutor's office, when responding to the lawyer, may forward a copy of that response to the client/complainant without violating SCR 20.38(1), the former Code's no-contact rule.
The committee concluded it may not. SCR 20.38(1) barred a lawyer, during representation of a client, from communicating on the subject of the representation with a party the lawyer knows to be represented by counsel in that matter, absent the other lawyer's prior consent or authorization by law. The committee explained that the rule is intended to preserve the integrity of the client-lawyer relationship and to protect the represented person, and that although the rule is usually discussed in adversary terms, the same policy applies in a non-adversary context. Accordingly, where a complainant in a criminal matter is represented by counsel, the prosecutor may not ethically communicate in any way with the complainant on the subject of the representation without the prior consent of the complainant's lawyer. The committee analogized to ABA Model Rule 4.2, noting it covers any represented person whether or not a party to a formal proceeding. The committee added that whether a prosecutor may be authorized by law to pursue such communications is a question beyond its scope.
Currency note
This opinion was issued in 1984, before Wisconsin's July 1, 2007 adoption of the revised Rules of Professional Conduct for Attorneys (the state's Ethics 2000 update), and it analyzes conduct under the former Code. Communication with represented persons is now analyzed under SCR 20:4.2 / 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 Treat this page as historical context, not current guidance.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: Can a prosecutor copy a represented complainant on a letter sent to the complainant's lawyer?
A: The committee concluded no; copying the complainant directly is communicating on the subject of the representation and requires the prior consent of the complainant's lawyer.
Q: Does the no-contact rule apply even though the prosecutor and the complainant are not adversaries?
A: Yes. The committee concluded the policy of protecting the integrity of the client-lawyer relationship applies equally in a non-adversary context.
Q: Did the committee decide whether a prosecutor could be authorized by law to make such contact?
A: No. The committee stated that whether a prosecutor may be authorized by law to pursue such communications is beyond the scope of its authority.
Background and rules framework
The opinion interpreted the former Code's prohibition on communicating with a represented party without the consent of that party's counsel (SCR 20.38(1)), drawing on the policy behind ABA Model Rule 4.2. That subject is now addressed by SCR 20:4.2 / Model Rule 4.2.
Citations and references
Rules of Professional Conduct:
- Wis. SCR 20.38(1) / Model Rule 4.2 (communication with a represented person) (former Code provision)
Other opinions cited:
- Wisconsin Formal Opinions E-82-4, E-74-1
- ABA Model Rule 4.2 (comment); ABA/BNA Lawyer's Manual on Professional Conduct, at 71:301-28
See also
- WI Ethics Op. E-87-8: DA Communication With Represented Criminal Defendants
- WI Ethics Op. E-91-6: Government Lawyer Contact With Represented Parties
- WI Ethics Op. E-96-3: Prosecutor Contact With Represented Persons via Agency Staff
- WI Ethics Op. E-87-2: Opposing Expert's Contact With a Represented Party
Source
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