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Is it unethical for the defendant’s lawyer in a criminal action to interview or obtain a statement from the complainant?
This question presupposes that:
1 The lawyer has been duly retained and has filed a notice of appearance in the criminal action.
2 The criminal action has not been tried and at trial the complainant will be the chief witness.
3 The interview or statement was not procured by either force or threat of force, fraud of any kind, payment or promise of payment.
Canon 9 provides, in part, that a lawyer “should not in any way communicate upon the subject of controversy with a party represented by counsel;…but should deal only with his counsel.” This prohibition against dealing directly with one represented by counsel does not apply to the interviewing of witnesses for the other party. Canon 39 expressly permits a lawyer to interview any witness or prospective witness for the opposing side in any civil or criminal action without the consent of opposing counsel
In a criminal action the State is the only party-plaintiff. The status of a complainant is merely that of a witness. He is neither a party to the action nor a client of the district attorney. In the opinion of the Committee it is professionally proper for a defendant’s lawyer to interview or obtain a statement from the complainant in a criminal action. The lawyer is under no obligation to seek the consent of the district attorney or even to advise him of his purpose. Of course, no fraud or deception must be practiced in conducting the interview or obtaining the statement. The complainant should be informed initially that the person interviewing him is the lawyer for the defendant or represents him. In such a sensitive setting, Canon 39 cautions the lawyer to “scrupulously avoid any suggestion calculated to induce the witness to suppress or deviate from the truth, or in any degree to affect his free and untrammeled conduct when appearing at the trial or on the Witness stand.”
Where, however, the defendant’s lawyer knows that the complainant in a criminal action is represented by private counsel, it is the opinion of the Committee that the lawyer should deal only with complainant’s counsel.
October 5, 1964