Can a lawyer talk privately to a represented opposing plaintiff who is also a witness in a related criminal case?

Plain-English summary

A lawyer represented a defendant in both a criminal case and a civil class action arising out of the same allegedly misleading advertising and deceptive trade practices. A person who was a named plaintiff in the class action and a witness for the state in the criminal case wished to speak privately with the lawyer about facts that could help in both cases. The lawyer had asked the civil plaintiff's attorney for permission to speak to members of the class and had been denied, and the person reportedly felt inhibited speaking openly at a deposition with other members present. The lawyer asked whether he could confer with the named plaintiff out of the presence of that person's counsel.

The committee answered no. Under DR 7-104(A)(1), a lawyer may not communicate about the subject of the representation with a party he knows to be represented by counsel in the matter without that counsel's prior consent or authorization by law. As defense counsel in the civil action, the inquirer could not confer with the named plaintiff without the consent of and out of the presence of that plaintiff's counsel. The committee further concluded that, on the stated facts, the inquirer could not effectively represent his client in the criminal action while continuing to represent the client in the civil action, and so should not continue the dual representation.

Currency note

This opinion was issued in 1975, before The Florida Bar's adoption of the 2006 revisions to the Rules of Professional Conduct. It applied the former Code of Professional Responsibility, which has since been replaced. Treat this page as historical context, not current guidance. Verify against current Rule 4-4.2 before relying on any specific requirement mentioned here.

Common questions

Q: Can a lawyer talk to a represented opposing party without their counsel present?

A: The opinion concluded he may not, under DR 7-104(A)(1), confer with a party he knows to be represented without that party's counsel's consent, even where the party wants to talk.

Q: What about the criminal case, where the person is only a witness?

A: Per the opinion, because the person was a represented plaintiff in the related civil action the bar applied; if that bar impeded the criminal defense, the lawyer should discontinue the dual representation.

Background and rules framework

The opinion applied DR 7-104(A)(1) of the former Code of Professional Responsibility, barring communication with a represented adverse party without counsel's consent. That subject corresponds to Model Rule 4.2 (communication with a person represented by counsel); the current Florida counterpart is Rule 4-4.2.

Citations and references

Rules of Professional Conduct (as cited, former Code):

• CPR DR 7-104(A)(1) (communicating with a represented adverse party)

See also

• FL Bar Ethics Op. 76-21: No Direct Contact With Represented Party
• FL Bar Ethics Op. 75-33: Firm Adverse to City Client

Source

• Landing page: https://www.floridabar.org/etopinions/etopinion-74-52/
• Original PDF: https://www-media.floridabar.org/uploads/2017/04/FL-Bar-Ethics-Op-74-52-1.pdf

Original opinion text

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

FLORIDA BAR ETHICS OPINION
OPINION 74-52
January 30, 1975
Advisory ethics opinions are not binding.
An attorney representing a defendant in a civil class action and a related criminal prosecution may not confer with a person who is both a plaintiff in the class action and a witness for the state in the criminal case without the consent of the person's attorney. If the ethical bar to communication with the civil plaintiff impedes effective representation in the criminal case, the attorney should discontinue the dual representation.
CPR: DR 7-104(A)(1)
Vice Chairman Daniels delivered the opinion of the committee:
The inquiring lawyer represents a defendant in both a criminal case and a civil class action arising out of the same allegedly misleading advertising and deceptive trade practices. The lawyer states:
I was advised that a person who is a named plaintiff in the class action in the civil case and a witness for the state in the criminal case, desires to speak to me privately on facts that could assist me greatly in both cases.
I contacted the attorney for the plaintiff in the civil case and requested permission to speak to members of the class. I was denied that request.
I have been informed that this person who desires to speak to me feels intimidated and inhibited by other members being around him and would most likely not speak openly at a deposition.
We are asked if the lawyer may, under the circumstances, confer with the named plaintiff in the class action out of the presence of the latter's counsel. The inquiry must be answered in the negative. DR 7-104(A)(1) provides:
DR 7-104 Communicating With One of Adverse Interest.
(A) During the course of his representation of a client a lawyer shall not:
(1) Communicate or cause another to communicate on the subject of the representation with a party he knows to be represented by a lawyer in that matter unless he has the prior consent of the lawyer representing such other party or is authorized by law to do so.
Under DR 7-104(A)(1), the inquirer, while defense counsel in the civil action, cannot confer with the named plaintiff in the civil action without the consent of and out of the presence of the latter's counsel. Moreover, under the stated facts, the inquirer cannot effectively represent his client in the criminal action if he continues representation of his client in the civil action. Accordingly, he should not continue the dual representation.