NEW YORK COUNTY LAWYERS’ ASSOCIATION
Committee on Professional Ethics
QUESTION NO. 711
May a lawyer whose client is charged with a criminal offense contact the complainant without the consent of the prosecuting attorney to discuss dropping the charges? May the lawyer counsel the complainant to fail to appear at a scheduled hearing in the matter?
Witnesses, even complaining witnesses, in a criminal proceeding are not represented by the prosecutor; subject to the caveat that any witness may refuse to speak with defense counsel if he or she chooses, there is no ethical or legal restriction on defense counsel contacting a witness without getting permission from the prosecutor. See, e.g., United States v. Medina, 992 F.2d 573, 579 (4th Cir. 1993) (“Witnesses sire neither the property of the government nor of the defendant”), cert. denied 114 S. Ct. 1049 (1994); United States v. Pinto. 755 F.2d 150, 152 (10th Cir, 1985); see also United States v. Grasso. 552 F.2d 46, 51 (2d Cir. 1977) (“Our adversary system prescribes no legal or moral duty that would require counsel to advise his opponent that a witness who has previously testified for the opponent in a pending case wants to talk with him”), vacated on other grounds, 438 U.S. 901 (1978),
Although there is no ethical prohibition against defense counsel contacting the complaining witness, there are a number of restrictions on what the attorney can say to the complaining witness- Disciplinary Rule 7-109(B) of the Lawyers’ Code of Professional Responsibility expressly prohibits a lawyer from advising or causing a person to hide or to leave the jurisdiction of a tribunal in order to make the person unavailable as a witness. Accord. EC 7-27, Disciplinary Rule 7- 104(A) (2) prohibits giving advice, other than the advice to secure counsel, to an unrepresented individual whose interests are or have a reasonable possibility of being in conflict with the interests of the lawyer’s client. See EC 7-18 (suggesting that the restriction on advice should apply regardless of whether or not there is a real or potential conflict of interest), More generally, DR 7-102 (A5 and DR 1-102(A) (4)-(5) prohibit, among other things, knowingly making false statements, engaging or assisting the client in engaging in illegal or fraudulent conduct, and engaging in conduct that is prejudicial to the administration of justice.
Although none of these restrictions prevent defendant’s counsel from asking the complaining witness to request the prosecution to drop the charges, DR 7-102 (A) and DR 1-102 (A) (4)- (5) would preclude threatening, bullying, or lying to the complaining witness, as well as persuading the complaining witness to commit perjury. More specifically, under DR 7- 104(A) (2) and EC 7-18 the lawyer may not seek to advise the complaining witness as to whether the benefits of dropping the charges outweigh the benefits of going forward.
The inquirer also has asked whether it is ethical to recommend to the complaining witness that the witness fail to appear at a scheduled hearing. Disciplinary Rule 7-109(B) provides that “ [a] lawyer shall not advise or cause a person to hide or to leave the jurisdiction of a tribunal for the purpose of making the person unavailable as a witness therein.” This Disciplinary Rule would prohibit the defendant’s lawyer from suggesting that the complainant fail to appear at a scheduled hearing. Moreover, advising witnesses to surprise the prosecution by not showing up for hearings may in some cases be conduct prejudicial to the administration of justice, which is prohibited by DR 1-102 (A) (5), See also ABA Standards Relating to the Administration of Criminal Justice, Defense Function Standard 4.3(c) (disapproval of obstructing communications between prosecutors and witnesses and of advising witnesses to refuse to give information to prosecutors). An attorney who attempts to resolve a case through a direct approach to the complainant must avoid suggesting that the witness fail to appear at a scheduled hearing or any other suggestion that may appear to be an attempt to conceal witnesses or evidence.
A criminal defendant’s lawyer does not need the consent of the prosecuting attorney prior to contacting the complainant about dropping charges against the attorney’s client. In dealing with the complainant, the attorney must be careful to observe the rules governing contact with witnesses, communicating with one of adverse interest, representing a client within the bounds of the law, and engaging in conduct prejudicial to the administration of justice. A defense attorney should not recommend that a complaining witness fail to show up at a scheduled court hearing.