Washington Lawyer

Legal Ethics: Opinion 321: Communications Between Domestic Violence Petitioner and Counsel for Respondent in a Privately Litigated Proceeding for Criminal Contempt

From Washington Lawyer, September 2003

(Opinion 321 was the subject of the September 2003 “Speaking of Ethics” column. Employing a hypothetical to explore obligations encompassed in Rule 4 (Transactions with Persons other than Clients), Opinion 321 addresses important communication and representational issues, such as the ethical duties under the rules of persons working for attorneys, the full understanding of the adverse or non-official court nature of an investigator’s or attorney’s questioning, and the obligation of contacting opposing counsel when interviewing individual with counsel in pertinent matter.)


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 … We..use…hypothetical facts to illustrate the workings of the D.C. Rules in order to provide guidance on interviewing unrepresented and represented persons…

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.

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. 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.” …

…(W)here 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.

…Rule 4.3(a) …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. …

Whether an investigator “reasonably should know” that a petitioner misunderstands her role must be inferred from all of the circumstances … 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. … 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. …

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. … Rule 4.3 …require(es)… 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.”

… The circumstances under which respondent’s counsel “reasonably should know” that an unrepresented person misunderstands the lawyer’s role will vary by context. …

… (T)he 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). …

… 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 …counsel is representing the respondent’s interests and not the petitioner’s.

…(I)f 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].

Another question the inquirer raises is whether an investigator … 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 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. …

… 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); 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. …

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…

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. …(T)he 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.

Inquiry No. 00-10-37
Adopted: June 2003