WISBAR 1996

Does a prosecutor violate the no-contact rule when caseworkers from another county agency contact represented parents in a CHIPS case?

Short answer: The opinion concluded that the prosecutor does not violate SCR 20:4.2 when county child-welfare workers contact represented parents while carrying out their statutory CHIPS investigation duties, because those contacts are 'authorized by law.' The prosecutor cannot avoid the rule through someone else's acts (SCR 20:8.4(a)), so if the workers go beyond their statutory role to pursue unrelated criminal matters, the contacts are no longer authorized and a prosecutor who directs or knowingly allows them violates the rule.

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This page answers the general question as of 1996. Ezel answers yours: whether it's allowed on your facts, under the current rules of professional conduct in your state, 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 Not binding precedent.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

Opinion E-96-3 addressed a CHIPS (child in need of protection or services) case in which the parents were represented by counsel who had filed a notice of retainer demanding advance notice of any contact with the parents, yet workers from the County Department of Health and Family Services (DHFS) repeatedly contacted the parents without the lawyer's knowledge. The committee analyzed whether the district attorney, who represents the state, violated SCR 20:4.2 by directing or allowing those contacts.

The committee concluded the DA was not directly violating SCR 20:4.2 because the DA was not personally contacting the represented parents. But under SCR 20:8.4(a) it is misconduct to violate the rules through the acts of another, so the rule could reach a DA who directed the contact or who knew of it and failed to stop it by a person over whom the DA had direct supervisory authority. The decisive question was whether the DHFS contacts themselves were prohibited. SCR 20:4.2 does not bar contact that is "authorized by law," and DHFS workers are authorized by statute to investigate CHIPS cases, assess the child's situation, and report to the court (citing Wis. Stat. 46.22, 48.069, 48.08, 48.33, 48.57). Because an adequate investigation would normally include contact with and input from the parents, those contacts are authorized by law and do not violate SCR 20:4.2.

The committee added two limits. First, the fact that a CHIPS investigation may affect separate criminal proceedings does not change the analysis, because SCR 20:4.2 does not turn on whether the contacts have civil or criminal implications. Second, DHFS workers are not criminal investigators and lack law-enforcement authority beyond limited custody powers (Wis. Stat. 48.08(2)); if their investigation goes outside its statutory responsibilities to focus on unrelated criminal matters, the contacts are no longer authorized by law, and a DA who directs them, or who has supervisory authority and fails to stop contacts the DA is aware of, then violates SCR 20:4.2.

Currency note

This opinion was issued in 1996, before Wisconsin's July 1, 2007 adoption of the revised Rules of Professional Conduct (the state's Ethics 2000 update). 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: Does a prosecutor break the no-contact rule when agency caseworkers contact represented parents?

A: Not when the workers act within their statutory role. The committee concluded that DHFS contacts carrying out statutory CHIPS investigation duties are "authorized by law" and so do not violate SCR 20:4.2.

Q: Can a prosecutor be responsible for contacts made by others?

A: Yes. The committee concluded that under SCR 20:8.4(a) a prosecutor can violate SCR 20:4.2 through the acts of another, such as by directing contacts or failing to stop contacts by someone under the DA's direct supervisory authority.

Q: Does it matter that the investigation might affect a criminal case?

A: No. The committee concluded that SCR 20:4.2 does not depend on whether the prohibited contacts have civil or criminal implications.

Q: When do the agency's contacts cross the line?

A: When they leave the statutory mission. The committee concluded that if DHFS workers go beyond their statutory duties to pursue unrelated criminal matters, the contacts are no longer authorized by law, and a DA who directs or knowingly allows them violates SCR 20:4.2.

Background and rules framework

The opinion interpreted SCR 20:4.2 / Model Rule 4.2 (communication with a represented person), focusing on its "authorized by law" exception, together with SCR 20:8.4(a) / Model Rule 8.4 (violating the rules through the acts of another). It applied Wisconsin's children's-code statutes governing DHFS investigations in CHIPS cases (Wis. Stat. ch. 48).

Citations and references

Rules of Professional Conduct:

Wis. SCR 20:4.2 / Model Rule 4.2 (communication with a represented person)
Wis. SCR 20:8.4(a) / Model Rule 8.4 (misconduct through the acts of another)

Statutes:

Wis. Stat. 46.22, 48.069, 48.08, 48.33, 48.57 (DHFS investigation and reporting duties in CHIPS cases)

Source

Landing page: https://www.wisbar.org/formembers/ethics/pages/formal-opinions.aspx
Original PDF: https://www.wisbar.org/formembers/ethics/Ethics%20Opinions/E-96-3.pdf

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