Ethics Opinion 263: Contacts With Persons Represented by Counsel; Application of Rule 8.4(g) to Criminal Contempt Proceedings

Opinion 263

Contacts With Persons Represented by Counsel; Application of Rule 8.4(g) to Criminal Contempt Proceedings

Where Lawyer A purports to limit his/her representation of a party in litigation to a particular aspect of that litigation, opposing Lawyer B, under Rule 4.2(a), may not communicate directly with Lawyer A’s client on other aspects of the litigation without Lawyer A’s consent, where there are issues in common in the represented and unrepresented aspects of the case. Where consent is withheld, Lawyer A must nevertheless receive the communication from Lawyer B and transmit it to the client. The bringing of a motion for criminal contempt of a domestic relations civil protection order, in order to gain advantage in the underlying domestic relations case, is not seeking criminal charges to gain advantage in a civil matter, as prohibited by Rule 8.4(g).

Applicable Rules

Rule 1.4(a) (Keeping Client Informed of Status of a Matter)
Rule 4.2(a) (Communications Between Lawyer and Opposing Parties)
Rule 8.4(g) (Seeking or Threatening Criminal Charges to Obtain Advantage in Civil Matter)

Inquiry
The Inquirer is a lawyer who represents victims of domestic violence in proceedings1 in Superior Court. We are informed by the Inquirer that one legal remedy for a victim of domestic violence is a Civil Protection Order (CPO), a court order issued against the perpetrator of the domestic violence. Among other things, the CPO prohibits the respondent-perpetrator from coming into physical proximity of the petitioner-victim. See D.C. Code § 16-1005.
     If a CPO is violated, the petitioner may bring a motion for criminal contempt against the respondent. Under District of Columbia Superior Court practice, the criminal contempt proceeding is initiated by motion in the action which led to the issuance of the CPO. See Rule 12, D.C Superior Court Family Division Rules on Intra-Family Proceedings. See also D.C. Code § 16-1005(f). The petitioner may also separately move the court to modify the terms of the CPO to give greater protection from the perpetrator.
     If the respondent in a CPO proceeding is indigent, the Superior Court will appoint counsel to represent that person in a criminal contempt proceeding. We are advised that appointed counsel for the respondent usually limits his representation to the contempt motion, most likely because his Criminal Justice Act appointment is so limited, and does not provide representation in the motion to amend the CPO order. Comment [4] to Rule of Professional Conduct 1.2 approves such limited representation, where the “scope of services provided by the lawyer may be limited . . . by terms under which the lawyer’s services are made available to the client.” Nevertheless, the CPO modification proceeding and the criminal contempt proceeding typically involve some common facts, i.e., those relating to the alleged violation of the CPO.
     One question posed by the Inquirer concerns the situation where counsel appointed to defend the criminal contempt motion does not, in fact, consider his representation to include the CPO modification proceeding. The Inquirer acknowledges that the lawyer for the petitioner/victim cannot communicate directly with the respondent concerning the contempt matter, since counsel has been appointed for the respondent in that proceeding; but she asks if it is ethical for her to communicate directly with the respondent concerning the CPO modification proceeding.
     The Inquirer also asks whether it is ethical for a criminal contempt motion to be filed in a CPO matter so that, among other things, its pendency (and the consequent risk to the respondent of a fine or imprisonment) may be used to obtain the respondent’s consent to a modification of the CPO to afford greater protection to the petitioner-victim.

Discussion

Communications With a Party Represented by Counsel
The ethical propriety of communication by a lawyer for a party with another party to a matter is governed by subpart (a) of Rule of Professional Conduct 4.2 (“Communication Between Lawyer and Opposing Parties”), which reads as follows:

During the course of representing a client, a lawyer shall not communicate or cause another to communicate about the subject of the representation with a party known to be represented by another lawyer in the matter, unless the lawyer has the prior consent of the lawyer representing such other party or is authorized by law to do so. [Emphasis added.]

The Rule 4.2(a) question presented to us depends upon whether the CPO modification proceeding in which the lawyer seeks to communicate directly with the respondent is the same “matter” as the contempt proceeding, in which the respondent has legal representation. If it is, then Rule 4.2(a) prohibits direct communication from the petitioner’s lawyer to respondent without the consent of respondent’s counsel. Under the facts of this Inquiry, we believe that the litigation in which the two motions have been filed is a single “matter” for purposes of Rule 4.2(a), and that this direct communication is prohibited without the requisite consent.
The term “matter” is used in several other provisions of the Rules of Professional Conduct, including Rules 1.7 and 1.9 (conflicts of interest), and Rule 1.10 (imputed disqualification). It is nowhere defined, but Comment [3] to Rule 1.7 states, with reference to when a lawyer is adverse to a client in a “matter,” that:

[t]he concept of “matter” is typically apparent in on-the-record adversary proceedings or other proceedings in which a written record of the position of parties exists.

This Comment suggests that, at least with respect to litigation, a particular litigation is a “matter.”
ABA Opinion 95-396 (July 28, 1995) discusses Rule 4.2(a). Concerning the meaning of the term “matter” and its scope, the ABA Opinion offers this example from criminal law:

[I]f the communicating lawyer represents a client with respect to a separate and distinct crime B and wishes to contact Defendant regarding that crime, the representation by counsel in crime A does not bar communications about crime B. . . . By prohibiting communication about the subject matter of the representation, the Rule contemplates that the matter is defined and specific, such that the communicating lawyer can be placed on notice of the subject of representation. Thus, if the representation is focused on a given matter, such as one involving past conduct, and the communicating lawyer is aware of this representation, she may not communicate with the represented person absent consent of the representing lawyer.

The quoted language, while not addressing the specific situation in the Inquiry before us, is consistent with an interpretation of “matter” as a particular litigation. Moreover, we believe that such an interpretation is the only one which makes any sense. 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. That circumstance is well-illustrated in the Inquiry before us, where the core question in a CPO modification motion and in a criminal contempt motion is the same: what, if anything, did the respondent do in violation of the CPO.
If, for purposes of Rule 4.2(a), “matter” were interpreted to mean that the CPO modification proceeding and the contempt proceeding were different “matters,” then a communication by the petitioner’s lawyer to the respondent concerning the CPO modification proceeding would not violate Rule 4.2(a), because the respondent would be unrepresented in that “matter.” Yet, because of the common facts in the two motions, a communication concerning the modification motion from the petitioner’s lawyer directly to the respondent would involve all of the concerns Rule 4.2(a) addresses, such as the lawyer’s use of the advantages of the lawyer’s training and experience to secure concessions or admissions from the adverse party. Clearly, such direct contact could influence, in a way that Rule 4.2(a) was intended to prevent, the ability of respondent’s lawyer to represent his client in the contempt motion. As one court observed in a case concerning Rule 4.2(a)’s predecessor, DR 7-104(A)(1):

The purpose of this prohibition is to prevent a person from being deprived of the advice of retained counsel by the bypassing of such counsel. . . . Disciplinary Rule 7-104(A)(1) preserves the attorney-client relationship as well as the proper functioning of the judicial system and at the same time safeguards the opposing party from an approach that may be improper or from an approach that may be well intended but misguided.

Carter v. Kanaras, 430 A.2d 1058, 1059 (R.I. 1981). A respected commentator puts the reason for the Rule 4. 2(a) prohibition more bluntly:

The prohibition is founded on the possibility of treachery that might result if lawyers were free to exploit the presumably vulnerable position of a represented but unadvised party.

Wolfram, Modern Legal Ethics (1986). Thus, our conclusion is 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.1
     Since we believe that there is just one matter in the type of domestic violence case the Inquirer describes, we believe that Rule 4.2(a) would require the lawyer representing the domestic violence petitioner to seek the consent of the lawyer representing the respondent in the contempt proceeding before communicating with the respondent directly concerning the CPO modification. Where consent is given, the communication obviously may occur without ethical consequence under Rule 4.2(a).
     Yet we can envision situations in which consent might not be given as, for example, when respondent’s lawyer is concerned that his client might say something in a CPO modification discussion with opposing counsel that might be used against the client in the contempt proceeding. But where consent is not given by the appointed lawyer, that lawyer cannot use Rule 4.2(a) and the limited scope of the engagement to prevent any CPO modification communications between the petitioner’s lawyer and the respondent. The petitioner’s lawyer needs to be able to communicate in some way with the respondent concerning the CPO modification motion, be it directly or through counsel. The subjects of such communication could be as routine as scheduling matters, or could involve settlement, evidence or other more substantive matters. There must be a way for these to occur. If the respondent’s lawyer refuses to allow such communication with the respondent directly, then the lawyer must accept the communication from the petitioner’s lawyer and take appropriate steps in response, such as transmitting the information to his client and acting on his client’s wishes.
     In other words, where respondent’s lawyer invokes Rule 4.2(a) to prevent a direct communication between petitioner’s lawyer and his client, respondent’s lawyer must receive that communication as occurring within the scope of his representation of the respondent, and report the communication to his/her client.2 To fail to do so would, in our opinion, constitute a violation of Rule 1.4 (requiring a lawyer to keep his client informed about the status of a matter).3
     In summary, under the facts of this case, the petitioner’s lawyer may not initiate direct communication with the respondent before contacting that party’s lawyer. The response of respondent’s lawyer will then inform the petitioner’s lawyer to how to proceed. If the respondent’s lawyer does not object to communication by petitioner’s lawyer with the respondent directly, petitioner’s lawyer may do so without violating Rule 4.2(a). If, on the other hand, respondent’s lawyer advises petitioner’s lawyer not to communicate directly with the respondent, the petitioner’s lawyer may not do so, but respondent’s lawyer thereby assumes the obligation to transmit information from petitioner’s lawyer to his/her client and to take such further steps as may be necessary under the circumstances.

Use of the Contempt Proceeding to Gain Advantage Under the CPO
The second question presented to us is whether the petitioner’s lawyer, after filing a motion for contempt, may offer not to prosecute the motion in order to negotiate a modification of the CPO that would be more favorable to the petitioner. The applicable ethical principle is found in Rule of Professional Conduct 8.4(g), which states:

It is professional misconduct for a lawyer to:
. . . (g) seek or threaten to seek criminal charges or disciplinary charges solely to obtain advantage in a civil matter.

The inquiry raises two potential questions: is a criminal contempt proceeding in a CPO matter a “criminal charge” under Rule 8.4(g) and, if it is, under the facts of the inquiry, is it raised solely to gain advantage in the CPO-modification matter.
There are no prior Legal Ethics Committee opinions concerning this aspect of Rule 8.4(g) or its predecessor in the Code of Professional Responsibility, DR 7-105.4 As regards the meaning of the term “criminal charges,” we see no reason why we should not interpret it as having its ordinary meaning in substantive law. And, according to clear authority in this jurisdiction, a criminal contempt proceeding is not a criminal prosecution. See Beckham v. United States, 609 A.2d 1122 (D.C. 1992); Matter of Wiggins, 359 A.2d 579 (D.C. 1976). It follows, then, that seeking or threatening criminal contempt is not seeking or threatening criminal charges under Rule 8.4(g).
This is, we believe, the correct conclusion. In an underlying civil matter in the District of Columbia, a criminal contempt motion may be brought by a party for the specific purpose of enforcing an order of the court in that proceeding. It is, then, by its very nature, a remedy that is available for the specific purpose of furthering the ends of a civil matter. To interpret Rule 8.4(g) to apply to such a proceeding would, effectively, make it a disciplinary violation for a lawyer to seek this particular remedy, a clearly illogical and anomalous result, and one we do not believe was intended by the drafters of this Rule.

Inquiry No. 95-4-13
Adopted: January 17, 1996

A different conclusion might result if the represented and unrepresented aspects of a litigation were completely unrelated, such that there would be no way that a direct communication from a lawyer to the opposing party could prejudice the ability of that party’s lawyer to represent his client. Cf. ABA Op. 93-396 (1993).
Where the respondent’s lawyer advises petitioner’s counsel that he is not in a position to give or withhold consent because he does not represent the respondent in the CPO modification motion, the petitioner’s lawyer may treat that as consent under Rule 4.2(a) to a direct communication with the respondent. In this circumstance, petitioner’s lawyer may reasonably conclude that respondent’s counsel has evaluated the consequences to the criminal contempt motion of a direct communication with his client concerning CPO modification, and has concluded that he has no objection to it.
Rule 1.4 requires that:

(a) A lawyer keep a client reasonably informed about the status of a matter and shall promptly comply with reasonable requests for information.
(b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.
Since, under the facts of this Inquiry, we have concluded that the entire litigation is the “matter,” the lawyer’s obligation to keep the client “reasonably informed about the status of a matter” would oblige him to keep the client informed about developments in the CPO modification proceeding.
D.C. Op. 220 (1991) concerned a different aspect of Rule 8.4(g), to wit, whether the filing of disciplinary charges against a lawyer can be threatened in order to influence the settlement of a civil matter in which the lawyer is involved as a party or counsel.