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87-F-112 - Prosecutor approached by Defendant without knowledge of defendant's attorney




Inquiry is made concerning the ethical obligations of a state prosecutor when a defendant attempts to communicate with the prosecutor, or seeks an interview with the prosecutor, without the knowledge or consent of the defendant's attorney.

Disciplinary Rule 7-104(A)(1) of the Code of Professional Responsibility embodied in Tennessee Supreme Court Rule 8 prohibits a lawyer from communicating with one of adverse interest known to be represented by a lawyer in the matter without the prior consent of the lawyer representing the adverse party.

The prohibition on communicating with a person known to be represented by another lawyer without that lawyer's consent has been in existence since the adoption of Canon 9 by the American Bar Association on August 27, 1908. Rule 4.2 of the Model Rules of Professional Conduct adopted by the American Bar Association on August 2, 1983 is substantially identical to DR 7-104(A)(1).

The prohibition is intended to preserve the integrity of the client-lawyer relationship by protecting the represented party from the superior knowledge and skill of the opposing lawyer. See Powell v. Alabama, 287 U.S. 45 (1932); United States v. Thomas, 474 F.2d 110 (10th Cir.) cert. denied, 412 U.S. 932 (1973); State v. Yatman, 320 So. 2d 401 (Fla. Dist. Ct. App. 1975); Tennessee Bar Association v. Freemon, 50 Tenn. App. 567, 362 S.W.2d 828 (1961).

A prosecutor may not circumvent the prohibition through the use of a law enforcement official or by advising another to communicate in a manner which would be impermissible if engaged in by the prosecutor. See People v. Hobson, 39 N.Y. 2d 479, 348 N.E.2d 894, 384 N.Y.S. 2d 419 (1976); Shantz v. Eyman, 418 F.2d 11 (1969) cert. denied, 397 U.S. 1021 (1970).

The prohibition applies even though the defendant has requested the interview, e.g., People v. Green, 405 Mich. 273, 274 N.W.2d 448 (1979); State v. Britton, 157 W. Va. 711, 203 S.E.2d 462 (1974), or where the interview is in connection with the investigation of other criminal activity, e.g., In Re Burrows, 291 Or. 135, 629 P.2d 820 (1981).

ABA Informal Opinion 1373 (Dec. 2, 1976) held that a prosecutor violated DR 7-104(A)(1) by forwarding to the defendant copies of letters to defense counsel containing plea bargain offers.

A state prosecutor is ethical obliged to avoid any and all communications with defendants without the knowledge and consent of the defendant's attorney.

This 28th day of September, 1987.


Michael E. Callaway
Charles T. Herndon III
G. Wilson Horde