Can a lawyer interview the opposing party about the party's expected testimony without opposing counsel's consent?

Plain-English summary

The inquirer asked whether Canon 39, which let a lawyer interview any witness or prospective witness for the opposing side without the consent of opposing counsel or party, created an implicit exception to Canon 9, which barred communicating about the subject of controversy with a party represented by counsel. The question arose in a vehicular accident where the defendant was represented by counsel employed by the insurance carrier.

The committee concluded that Canon 39 was in no way a modification of Canon 9, and that Canon 39 plainly contemplated witnesses other than parties, a point made clear by Canon 39's own reference to dispensing with the consent of "opposing counsel or party." It noted the ABA Committee on Professional Ethics had reached a similar conclusion in Opinion 187. The committee added that the insurance-defense context was not material: that the lawyer was selected and compensated by the insurance carrier did not prevent him from being considered counsel for the defendant within Canon 9, citing Opinion 65-3.

Currency note

This opinion was issued in 1969, before The Florida Bar's adoption of the 2006 revisions to the Rules of Professional Conduct. It applied the former Canons 9 and 39. Communication with a person represented by counsel is now addressed by Rule 4-4.2. Treat this page as historical context, not current guidance. Verify against the current rules before relying on any specific requirement mentioned here.

Common questions

Q: Can a lawyer talk to the opposing party directly about their testimony?

A: Under this opinion, not without the consent of that party's attorney. The committee held the witness-interview canon did not authorize contacting a represented party.

Q: Does it matter that the defendant's lawyer was hired by an insurer?

A: No. The committee said the insurance-defense context was immaterial; a lawyer selected and paid by the carrier is still counsel for the defendant for purposes of the no-contact rule.

Background and rules framework

The opinion applied the former Canon 9, barring contact with a represented party, and former Canon 39, on interviewing opposing witnesses, and drew on ABA Opinion 187. Communication with a represented person is now addressed by Rule 4-4.2 of the Rules Regulating The Florida Bar; the Model Rule analogue is Rule 4.2.

Citations and references

Rules of Professional Conduct:

• Canons 9 and 39 [Code of Professional Responsibility; no-contact rule now in Rule 4-4.2]

Other opinions cited:

• ABA Opinion 187: the witness-interview rule does not reach parties
• Florida Opinion 65-3: insurer-paid counsel is still counsel for the defendant

See also

• FL Bar Ethics Op. 70-33: Negotiating With Insurance Adjusters

Source

• Landing page: https://www.floridabar.org/etopinions/etopinion-69-40/
• Original PDF: https://www-media.floridabar.org/uploads/2017/04/FL-Bar-Ethics-Op-69-40-1.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

FLORIDA BAR ETHICS OPINION
OPINION 69-40
November 10, 1969
Advisory ethics opinions are not binding.
An attorney may not interview the opposing party about the party's anticipated testimony as a witness except with the consent of the opposing party's attorney.
Canons: 9 and 39
Opinions: 65-3, ABA 187
Chairman MacDonald stated the opinion of the committee:
Canon 9 admonishes a lawyer that he "should not in any way communicate upon the subject of controversy with a party represented by counsel. . . ." Canon 39, however, provides that the lawyer "may properly interview any witness or prospective witness for the opposing side in any civil or criminal action without the consent of opposing counsel or party."
We are asked by the inquirer whether Canon 39 in effect represents an implicit exception to the prohibition set forth in Canon 9, with the corresponding result that he may interview without consent of opposing counsel the opposite party to the extent that the interview relates to prospective testimony of such party as a witness. The question is asked in the particular context of a vehicular accident wherein the defendant is apparently represented by counsel employed by the insurance carrier.
We conclude that Canon 39 is in no way a modification of the prohibition set forth in Canon 9 as quoted above, and that the reference in Canon 39 above cited plainly contemplates witnesses other than parties. Indeed, this is made clear when note is taken of the fact that the consent which is obviated by the provision cited in Canon 39 is that of "opposing counsel or party." The American Bar Association Committee on Professional Ethics has reached a similar conclusion (see Opinion No. 187).
The fact that the question is asked in the context of an insurance defense situation is not material. That the lawyer is selected and compensated by the insurance carrier hardly prevents his being considered as counsel for the defendant within the purview of Canon 9 (see our Opinion No. 65-3).