May a Wisconsin district attorney mail motions and notices directly to a represented criminal defendant, or contact a child support payor who was once but is not now represented?

Plain-English summary

Opinion E-87-8 addressed whether the disciplinary standards preclude a district attorney from (1) mailing or serving copies of the state's motions, discovery demands, and other formal notices on a criminal defendant who is represented by counsel, where defense counsel receives a full copy and the originals are filed with the court, and (2) corresponding with a delinquent child support payor who either had been represented at an earlier, concluded stage of the proceeding or who had separate, unrelated represented matters pending with the district attorney's office.

On the first question, the committee applied the no-contact rule. Under both the former Code (SCR chapter 20, repealed effective January 1, 1988) and the Rules of Professional Conduct for Attorneys (re-created effective January 1, 1988), a lawyer may not communicate about the subject of the representation with a party the lawyer knows to be represented by counsel in that matter, absent consent of opposing counsel or authorization by law. The committee noted SCR 20.38(1) has been held applicable to publicly employed Wisconsin attorneys, and specifically to district attorneys, citing Disciplinary Proceedings Against Zapf and Disciplinary Proceedings Against Mauch. It concluded that, without prior consent of counsel for the represented party or authorization by law, a district attorney may not communicate with a criminal defendant on the subject of the representation under SCR 20.38(1) and SCR 20:4.2.

On the second question, the committee found no prohibition against a district attorney's direct communication with a previously represented delinquent payor in a child support enforcement proceeding, provided the district attorney has no reasonable basis to believe the payor is represented in the matter and otherwise complies with SCR 20.38(2) and SCR 20:4.3 (the rule governing dealings with unrepresented persons). Where the district attorney's office is simultaneously prosecuting the payor in an unrelated matter in which defense counsel is of record, the committee said the duties would be substantially the same. It added that, particularly when simultaneously prosecuting a criminal charge, prior notification to criminal defense counsel of the intent to communicate directly with the payor would be consistent with the spirit of the rules, because the protections afforded represented criminal defendants could otherwise be undercut by disclosures made in unrelated proceedings in which the defendant is unrepresented.

Currency note

This opinion was issued in 1987, 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 both the former Code and the Rules re-created effective January 1, 1988. The no-contact and unrepresented-person rules (SCR 20:4.2 and 20:4.3) may since have been amended. 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 mail motions or notices straight to a defendant who has a lawyer if the lawyer gets a copy too?

A: The committee concluded no; without consent of counsel or authorization by law, a district attorney may not communicate with a represented criminal defendant on the subject of the representation, citing SCR 20.38(1) and SCR 20:4.2.

Q: Does the no-contact rule apply to district attorneys and other government lawyers?

A: The opinion stated SCR 20.38(1) has been held applicable to publicly employed Wisconsin attorneys and specifically to district attorneys, citing Disciplinary Proceedings Against Zapf and Against Mauch.

Q: Can a prosecutor write directly to a child support payor who used to have a lawyer?

A: The committee found no prohibition, provided the district attorney has no reasonable basis to believe the payor is represented in the matter and complies with SCR 20.38(2) and SCR 20:4.3.

Background and rules framework

The opinion interpreted the no-contact rule for represented persons (SCR 20.38(1) under the former Code and SCR 20:4.2 / Model Rule 4.2) and the rule governing dealings with unrepresented persons (SCR 20.38(2) and SCR 20:4.3 / Model Rule 4.3), applying both to a district attorney as a publicly employed lawyer.

Citations and references

Rules of Professional Conduct:

• Wis. SCR 20:4.2 / Model Rule 4.2 (communication with a represented person); former Code SCR 20.38(1)
• Wis. SCR 20:4.3 / Model Rule 4.3 (dealing with an unrepresented person); former Code SCR 20.38(2)

Cases:

• Disciplinary Proceedings Against Zapf, 126 Wis. 2d 123, 375 N.W.2d 654 (1985)
• Disciplinary Proceedings Against Mauch, 107 Wis. 2d 557, 219 N.W.2d 877 (1982)

Other opinions cited:

• Wisconsin Formal Ops. E-87-2 and E-82-4

See also

• WI Ethics Op. E-96-3: Prosecutor Contact With Represented Persons Via Agency Staff
• WI Ethics Op. E-91-6: Government Lawyer Contact With Represented Parties
• WI Ethics Op. E-95-1: Communicating With a Represented Government Agency
• WI Ethics Op. E-89-14: Communications With Guardians Ad Litem

Source

• Landing page: https://www.wisbar.org/formembers/ethics/pages/formal-opinions.aspx
• Original PDF: https://www.wisbar.org/formembers/ethics/Ethics%20Opinions/E-87-8.pdf