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