Opinions

Ethics Opinion 321

Communications Between Domestic Violence Petitioner and Counsel for Respondent in a Privately Litigated Proceeding for Criminal Contempt


Counsel for a respondent may send an investigator to interview an unrepresented petitioner in preparation for a contempt proceeding in which the petitioner has alleged that the respondent has violated the terms of a domestic violence civil protection order, provided that respondent’s counsel makes reasonable efforts to ensure that the investigator complies with the requirements of the D.C. Rules of Professional Conduct. These obligations include ensuring that the investigator does not mislead the petitioner about the investigator’s or the lawyer’s role in the matter and that investigators do not state or imply that unrepresented petitioners must or should sign forms such as personal statements or releases of medical information. Counsel should also take reasonable steps to ensure that, where an investigator reasonably should know that the unrepresented person misunderstands the investigator’s role, the investigator makes reasonable affirmative efforts to correct the misunderstanding.

If the petitioner is represented by counsel in connection with the domestic violence matter, respondent’s counsel may not contact the petitioner without permission of petitioner’s counsel.

Applicable Rules

  • Rule 1.3 (Diligence and Zeal)
  • Rule 4.1 (Truthfulness in Statements to Others)
  • Rule 4.2 (Communication Between Lawyer and Opposing Parties)
  • Rule 4.3 (Dealing with Unrepresented Person)
  • Rule 5.3 (Responsibilities Regarding Nonlawyer Assistants)
  • Rule 8.4 (Misconduct)

Inquiry
We have received an inquiry from counsel representing domestic violence petitioners in the District of Columbia, who raises questions related to interviews of domestic violence petitioners by investigators working for defense counsel. For purposes of this opinion we have constructed a set of hypothetical facts, which we do not mean to suggest are true or typical of the conduct of defense counsel in similar cases. We instead use these hypothetical facts to illustrate the workings of the D.C. Rules in order to provide guidance on interviewing unrepresented and represented persons. The facts we will use for this purpose are as follows:

A woman secured a Civil Protection Order (CPO) from the D.C. Superior Court in a case in which she alleged that her former intimate partner had engaged in domestic violence against her.1 The woman later filed a motion for contempt against her former partner for violation of the CPO. The motion alleged that the former partner had engaged in serious violations of the CPO, including death threats. Because such a motion may result in criminal sanctions, including fines and incarceration, the court appointed counsel to represent her former partner. Petitioner proceeded pro se, without the assistance of a prosecutor and without counsel.

Respondent’s counsel sent an investigator to interview the petitioner at her home. The investigator, a friendly female college student, disclosed that she worked for respondent’s “court-appointed” counsel but did not tell the petitioner that the petitioner had a right to refuse to speak to her. The investigator expressed sympathy for the petitioner’s situation and asked the petitioner to explain her version of events. Based on their conversation, the investigator drafted a “statement of the petitioner” and asked the petitioner to sign the statement. The petitioner provided her initials and signature on the statement. The investigator then asked the petitioner to sign a release of confidential medical records, which the petitioner also signed.

After the interview described above had occurred, a lawyer began to represent the petitioner as pro bono counsel. In the course of that representation, the lawyer learned that the petitioner had agreed to the interview with the investigator because she believed that the investigator was a person “from the court” who was sympathetic and could help her in convincing the respondent to stay away from her. The petitioner also believed that she was required to cooperate and would be penalized if she refused. This belief arose in part from a prior experience in which the petitioner had been chastised by a judge for declining to speak with a guardian ad litem appointed to represent her son. The petitioner likewise believed that she was required to sign the papers the investigator presented to her, because the investigator had told her that she “needed” to sign the papers so that the investigator could obtain these records. Later, in the contempt proceeding, respondent’s counsel used the signed statement obtained by the investigator to impeach the petitioner on cross-examination.

In this opinion we first discuss lawyers’ responsibilities for the conduct of the investigators they supervise. We then analyze how an interview by an investigator supervised by respondent’s counsel similar to the hypothetical above should be analyzed under Rule 4.3 of the D.C. Rules of Professional Conduct. Finally, we consider whether, in cases in which the petitioner is represented by counsel, respondent’s counsel must, under D.C. Rule 4.2, obtain permission of petitioner’s counsel before seeking to interview the petitioner.

Discussion
Under D.C. Rules 5.3 and 8.4, respondent’s counsel must make reasonable efforts to ensure that non-lawyer assistants, including investigators, conduct themselves in a manner consistent with the D.C. Rules.2 D.C. Rule 8.4(a) provides that it is “professional misconduct for a lawyer to . . . violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another.” See also ABA Formal Op. 95-396 (1995) (lawyer with direct supervisory authority over an investigator is responsible for contacts made by the investigator if the lawyer did not make reasonable efforts to prevent them, instructed the investigator to make them, or, knowing that the investigator planned to make them, failed to instruct the investigator not to do so). Accordingly, the central question here is whether counsel for a respondent who requested, ratified or failed to take reasonable steps to prevent the conduct by an investigator described above would run afoul of any of the D.C. Rules of Professional Conduct. D.C. Rule 5.3.

Under the hypothetical facts summarized above, where the petitioner was proceeding pro se without being represented by counsel at the time the interview occurred, the applicable rule is D.C. Rule 4.3, “Dealing with Unrepresented Person.” That rule provides:

In dealing on behalf of a client with a person who is not represented by counsel, a lawyer shall not:
(a)Give advice to the unrepresented person other than the advice to secure counsel, if the interests of such person are or have a reasonable possibility of being in conflict with the interests of the lawyer’s client;
(b) State or imply to unrepresented persons whose interests are not in conflict with the interests of the lawyer’s client that the lawyer is disinterested. When the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer’s role in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding.

     Thus, as we have previously stated, under D.C. Rule 4.3, “a lawyer representing a client shall not give advice to an unrepresented person (other than advice to secure counsel) where the interests of that person may be in conflict with the interests of the lawyer’s client, and shall not, even with respect to a person whose interests are not in conflict with those of the lawyer’s client, leave the impression that the lawyer is disinterested. . . . Rule 4.3 requires the investigating lawyer to clarify his position ‘[w]hen the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer’s role in the matter.’” D.C. Legal Ethics Op. 269 n.3 (1997).

Although the specific language requiring counsel to make reasonable efforts to correct misunderstandings about the lawyer’s role appears in Rule 4.3(b), addressing dealings with unrepresented persons whose interests are not adverse to those of counsel’s client, rather than Rule 4.3(a), which is applicable here because the petitioner’s interests clearly were adverse, Rule 4.3(b) also applies a fortiori where an unrepresented person misunderstands a lawyer’s role in dealings with the person where the interests are adverse. Thus, among other requirements, D.C. Rule 4.3 requires lawyers to make reasonable efforts to ensure that, where investigators either know or “reasonably should know” that the unrepresented person misunderstands their role, the investigators make reasonable efforts to correct the misunderstanding. Indeed, as we have previously emphasized, Rule 4.3 requires lawyers “to take affirmative steps to avoid misunderstandings and assure” that the unrepresented person “correctly understands the lawyer’s role in the matter.” D.C. Legal Ethics Op. 287 (1999).

Whether an investigator “reasonably should know” that a petitioner misunderstands her role must be inferred from all of the circumstances, including the level of sophistication of the unrepresented person and the nature of the proceedings at issue. The inquirer suggests that it can generally be inferred that indigent unrepresented petitioners in domestic violence cases who decide to speak to a respondent’s investigator misunderstand the investigator’s role.3 We cannot make this blanket assumption, however, because D.C. Rule 4.3 takes a different tack. Rather than barring counsel’s contact with vulnerable unrepresented persons with adverse interests—clearly a choice available to the Court of Appeals—Rule 4.3 permits such contacts, so long as that counsel does not misrepresent his or her role.

This policy determination in Rule 4.3 serves several important purposes. One is the preservation of the ability of respondent’s counsel to conduct an investigation in order to defend her client against serious criminal charges. Indeed, the responsibility of defense counsel to conduct a thorough investigation is embodied in D.C. Rule 1.3’s mandate that counsel represent their clients with diligence and zeal. Rule 4.3 thus allows defense counsel to have access to information from witnesses, even complaining witnesses, so long as that contact with defense counsel is voluntary on the part of the unrepresented witness.

A second purpose of Rule 4.3 is to allow unrepresented persons to make their own decisions about whether to speak to counsel representing a client with adverse interests. The inquirer correctly emphasizes that the voluntariness of that choice may be called into question if the unrepresented person is confused about counsel’s role. Rule 4.3 addresses that problem by requiring that respondent’s counsel “make reasonable efforts to correct the misunderstanding” whenever he or she “knows or reasonably should know that the unrepresented person misunderstands the lawyer’s role.”

Our hypothetical posits that the petitioner misunderstood the investigator’s role, believing that the investigator was a person “from the court” who was in a position to “help her” by intervening with the respondent to stop the abuse. The relevant question under the language of Rule 4.3, however, is not whether the petitioner misunderstood the investigator’s role, but whether the investigator knew or reasonably should know that the petitioner misunderstood her role. The circumstances under which respondent’s counsel “reasonably should know” that an unrepresented person misunderstands the lawyer’s role will vary by context. One relevant factor is the likelihood of misunderstandings generated by the nature of the proceedings at issue. In the hypothetical presented above, for example, another “court appointed” figure—a guardian ad litem—had also previously appeared at the petitioner’s door requesting an interview, and the petitioner had been chastised by a judge for declining to speak to that “court-appointed” official. Respondent’s counsel cannot automatically be charged with knowledge of such a situation, but, to the extent that respondent’s counsel is or reasonably should be aware that multiple interventions by the state are in process in a particular case, that counsel must instruct investigators not to mislead the unrepresented petitioner and to “make reasonable affirmative efforts to correct” any misunderstanding on the part of the unrepresented petitioner as to counsel’s role in representing the respondent.

Another question raised by the hypothetical concerns the likelihood for misunderstanding generated when investigators for respondent’s counsel identify themselves as working for “court appointed” counsel or counsel “from the court.” To the extent that counsel or investigators reasonably should know, given the specific wording of such a statement and the context in which it is made, that such references to “the court” increase the probability that an unrepresented person will misunderstand counsel’s partisan role in the matter, such language should be avoided. The fact that the language may be literally true does not cure the potential professional responsibility issue, because the D.C. Rules are clear that counsel must not “state or imply” to unrepresented persons that “the lawyer is disinterested.” D.C. Rule 4.3(b) (emphasis supplied). Thus, in order to avoid any misunderstanding generated when investigators for respondent’s counsel identify themselves as working for “court appointed” counsel or counsel “from the court,” counsel and investigators must clearly identify themselves as representing the respondent in the matter.4

A similar potential for misunderstanding may arise to the extent that an investigator agrees to a petitioner’s request to intervene with a respondent on her behalf, as in the situation we hypothesize. Here again, the relevant factor is whether the respondent’s counsel “stated or implied” neutrality or nonpartisan authority in the situation. An investigator interviewing an unrepresented petitioner might agree to carry a message to the respondent, but should make clear to the petitioner that the investigator has no authority to require respondent to agree to petitioner’s request. Counsel for the respondent should also remind the petitioner that, regardless of what act counsel for the respondent agrees to take—such as urging the respondent to stay away from the petitioner—counsel is representing the respondent’s interests and not the petitioner’s.

Similarly, if it becomes apparent that the unrepresented petitioner believes she is required to speak to the investigator from respondent’s counsel, Rule 4.3 requires the investigator to take “whatever reasonable, affirmative steps are necessary” to correct such a misunderstanding. See Rule 4.3, comment [2].

Many other factors affect when counsel reasonably should know that an unrepresented person misunderstands the lawyer’s role. One such factor is the degree to which the unrepresented person understands the English language. Hearing impairment, psychological disorder or other mental incapacity, and juvenile status are other examples of factors that tend to lead counsel “reasonably to know” that an unrepresented person misunderstands the lawyer’s role. This list is far from exhaustive, but illustrates that what an investigator reasonably should know about whether a petitioner misunderstands the investigator’s role must be inferred from all of the circumstances. While an investigator is not required to be a mind reader, she is not permitted under Rule 4.3 to ignore circumstances indicating that a petitioner misunderstands the partisan, adversarial role of respondent’s counsel in the proceedings at issue.

Another question the inquirer raises is whether an investigator in circumstances such as those described in the hypothetical above would violate Rule 4.3(a) in obtaining a signed personal statement and release of medical records from an unrepresented petitioner. The answer depends on whether the investigator, in stating that the petitioner “needed to” sign the forms so that she could obtain the petitioner’s medical information, in effect stated or implied that the petitioner was required to or should sign the release forms. An investigator who did state or imply such an obligation would be transgressing the prohibition in Rule 4.3(a) against giving legal advice to unrepresented persons whose interests are adverse to those of the supervising counsel’s client.

The inquirer asks whether Rule 4.3 requires lawyers to advise unrepresented persons of their right to obtain independent legal advice before signing any substantive legal documents, including releases, drafted for an unrepresented person’s signature by counsel for a client with adverse interests. The inquirer cites South Carolina Ethics Opinion 94-07 (1994), which supports this position. Other jurisdictions, however, have reached the opposite conclusion. See, e.g., Dolan v. Hickey, 385 Mass. 234, 236, 431 N.E.2d 229, 231 (1982) (“the acts of drafting documents and presenting them for execution, without more, do not amount to ‘advice,’ and are proper as long as the attorney does not engage in misrepresentation or overreaching”). The compilers of the Restatement of Law Governing Lawyers similarly reject the South Carolina Ethics Committee’s view. See Restatement of Law Governing Lawyers § 103, Reporter’s Note, Comment b, Rationale (rejecting approach adopted in S.C. Ethics Op. 94-07).

We do not see a basis in the D.C. Rules of Professional Conduct for adopting the South Carolina Ethics Committee’s approach. D.C. Rule 4.3(a) states that the only legal advice counsel for a client with adverse interests may give an unrepresented person is the legal advice “to secure counsel.” Because the language of Rule 4.3(a) is permissive, rather than mandatory, we do not see grounds for adopting a general requirement that counsel advise an unrepresented petitioner to seek the advice of counsel. We note, however, that Comment [1] to Rule 4.3 emphasizes that an “unrepresented person, particularly one not experienced in dealing with legal matters, might assume that a lawyer will provide disinterested advice concerning the law even when the lawyer represents a client,” and that a lawyer “must take great care not to exploit these assumptions” (emphasis added); see also Charles W. Wolfram, Modern Legal Ethics § 11.6.3, at 617 (1986) (“when the lawyer makes clear that he or she is representing only the interest of the client, the mere presentation of the document for signing should not constitute implicit advice. Nonetheless, the position of the lawyer is precarious, and a written notice to the unrepresented party, making the lawyer’s limited interests quite clear, is advisable.”) Thus, investigators “must take great care” to ensure that unrepresented persons understand that the presentation of documents does not amount to offering advice to sign them.

Finally, the inquirer asks whether respondent’s counsel should be required to instruct investigators to explain that any statements an unrepresented petitioner makes, or releases of information she provides, may be used against her in the contempt proceeding. D.C. Rule 4.3 contains no such a general requirement that counsel give this type of “Miranda” warning in the context of an interview of an unrepresented person, and we have found no substantive District of Columbia law that imposes such a requirement. To the contrary, in adopting Rule 4.3 the Court of Appeals struck a different balance between the public interest in protecting unrepresented persons from being misled about counsel’s role and adverse counsel’s interests in interviewing unrepresented persons. That balance seeks to protect the unrepresented person from being misled about counsel’s role, but does not require that counsel actively discourage the unrepresented person from providing information to counsel or counsel’s agents.

Other sources of professional responsibility guidance further support the conclusion that it is not within the scope of defense counsel’s duties to inform unrepresented persons, even complaining witnesses, of their legal situation. See, e.g., A.B.A. Standards for Criminal Justice 4-4.3, “Relations with Prospective Witnesses” (“It is not necessary for defense counsel or defense counsel’s investigator, in interviewing a prospective witness, to caution the witness concerning possible self-incrimination and the need for counsel.”); Restatement of the Law Governing Lawyers § 106, comment c (“A lawyer other than a prosecutor . . . is not required to inform any nonclient witness or prospective witness of the right to invoke privileges against answering”). It follows that, if defense counsel has no duty to advise an unrepresented person of potential criminal consequences in agreeing to an interview, that counsel also has no duty to advise an unrepresented person, including an opposing party, of other legal consequences. Accordingly, we see no warrant to extend the requirements of Rule 4.3 to require Miranda-type warnings in the context of interviews of unrepresented persons by counsel or counsel’s agents representing clients with adverse interests.

In sum, we conclude that, as general matter, counsel for a respondent may direct an investigator to seek an interview with an unrepresented petitioner, but must make reasonable efforts to ensure that the investigator does not mislead the petitioner about the investigator’s role. In addition, respondent’s counsel must instruct the investigator that, if it appears that the petitioner misunderstands the investigator’s role, the investigator should take “whatever reasonable, affirmative steps are necessary to correct the misunderstanding.” D.C. Rule 4.3 comment [2]. Finally, an investigator may ask an unrepresented petitioner to sign substantive documents, but must take “great care” that the unrepresented person understands that neither the lawyer nor the investigator is giving legal advice in connection with the preparation or execution of such documents. D.C. Rule 4.3, comment [1].

The second general matter the inquirer raises is whether, in cases in which counsel represents the petitioner in a contempt proceeding based on violation of a CPO, respondent’s counsel must obtain permission of petitioner’s counsel before seeking to interview the petitioner. The inquirer reports that some defense counsel view such petitioners not as parties, but merely as witnesses in the contempt proceeding, and argue that Rule 4.2 therefore does not apply or that Rule 4.2 is trumped by defense counsel’s duty of zealous advocacy. Such a characterization is precluded by commentary to Rule 4.2 and by earlier opinions of this Committee.

Comment 4 to D.C. Rule 4.2 explicitly provides that any person who is represented by counsel concerning “the matter in question” falls within the ambit of the Rule, “whether or not a party to a formal proceeding.” D.C. Rule 4.2 comment [4]. Accordingly, if the petitioner is represented by counsel, Rule 4.2 is applicable and forbids the respondent’s lawyer from interviewing the petitioner without permission from the petitioner’s lawyer, regardless of whether the petitioner is a formal “party” to the contempt proceeding.

Our conclusion further rests on our Opinion No. 263, in which we opined that a CPO modification proceeding and a CPO contempt proceeding, both based on the same underlying CPO, constitute the same “matter” under Rule 4.2. D.C. Ethics Op. 263 (1996). In that opinion we addressed a situation in which a lawyer representing a domestic violence CPO petitioner sought communication with the respondent about seeking a modification of the CPO to strengthen its protections. The petitioner’s lawyer had also filed contempt charges based on alleged violations of the CPO. The court appointed counsel to represent the respondent in the contempt proceeding, but that counsel represented the respondent only in the contempt proceeding, and not on the CPO modification motion. The petitioner’s lawyer accordingly inquired whether the respondent was “represented” for purposes of D.C. Rule 4.2 in the separate CPO modification proceeding. We concluded that, “at least with respect to litigation, a particular litigation is a ‘matter.’” Id. In support of this conclusion, we reasoned that:

While litigation may have many facets to it, those facets typically have at least some facts, evidence and legal principles in common. Activities or developments in one facet of a case rarely fail to have implications in others.

    We also relied on ABA Ethics Opinion 95-396 (1995), which interpreted the term “matter” in ABA Model Rule 4.2 as encompassing that which was sufficiently “defined and specific, such that the communicating lawyer can be placed on notice of the subject of representation.” D.C. Ethics Op. 263, quoting ABA Ethics Op. 95-396 (1995). Accordingly, we decided that “the relevant ‘matter’ is the legal proceeding brought by the domestic violence victim, with the CPO modification and contempt motions being but different aspects of that proceeding.”

Under this approach, the domestic violence case constitutes the litigation, and the CPO and contempt proceedings involve aspects of the same underlying “matter” for purposes of D.C. Rule 4.2(a), even though counsel may represent the persons involved only with respect to some aspects of the litigation. If the petitioner is represented by counsel in connection with the domestic violence matter, the petitioner is represented as to “the subject of the representation” for purposes of Rule 4.2 (a). Accordingly, the respondent’s lawyer or investigator may not contact the petitioner without the consent of the petitioner’s lawyer or unless otherwise authorized by law to do so.

July 2003


1. D.C. law provides that when a judge finds good cause to “believe the respondent has committed or is threatening an intrafamily offense,” the court may issue a CPO. D.C. Code § 16-1005 (1981).

2. D.C. Rule 5.3 states:

    With respect to a nonlawyer employed or retained by or associated with a lawyer . . . (b) A lawyer having direct supervisory authority over the nonlawyer shall make reasonable efforts to ensure that the person’s conduct is compatible with the professional obligations of the lawyer; and
    (c) a lawyer shall be responsible for conduct of such a person that would be a violation of the Rules of Professional Conduct if engaged in by a lawyer if:
    (1) the lawyer requests or, with the knowledge of the specific conduct, ratifies the conduct involved; or
    (2) the lawyer has direct supervisory authority over the person . . . and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action.

3. The inquirer also suggests that respondent’s counsel is barred from contacting unrepresented petitioners under the D.C. Domestic Violence Rule 8, which regulates discovery from the opposing party in privately prosecuted contempt proceedings. Rule 8 provides that “[f]or good cause shown and with due regard for the summary nature of the proceedings, the Court may authorize a party to proceed with discovery from the other party by requests for written interrogatories or production of documents.” SCR-DV Rule 8. We do not address this issue because it is outside the scope of our authority, which is confined to questions of interpretation under the D.C. Rules of Professional Conduct.

4. See, e.g., ABA Formal Op. 93-378 (1993) (“When a lawyer contacts any witness, lay or expert, actual or potential, the lawyer must not knowingly leave the witness in ignorance of the lawyer’s relationship to the case that gives occasion to the contact.”