Ethics Opinions
Opinions and advice of the Professional Ethics Committee, its members
and assistants, are issued pursuant to State Bar Bylaws, Article IV,
Section 5. Opinions and advice are limited to the facts presented, are
advisory only and are not binding on the courts, the Board of Attorneys
Professional Responsibility or members of the State Bar of
Wisconsin.
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E-96-3 REVISED: Prosecutors' Communications with Represented Persons
Through Personnel of Other Governmental Agencies
Facts
An attorney represents a husband and wife with regard to a CHIPS
petition filed regarding their child. The District Attorney's Office
represents the state. The attorney representing the parents files a
Notice of Retainer with the DA's Office and the court that specifically
demands advance notice of any intended contacts the state, the county or
any of its agents wish to have with the parents regarding the pending
matter. Ignoring that, workers from the County Department of Health and
Family Services (DHFS) have repeated contacts with the parents without
the knowledge of the parents' attorney.
Questions
- 1) If the district attorney directs these contacts or knows of them
and allows them to occur, does the DA violate SCR 20:4.2?
- 2) Is the DA's ethical obligation affected by the fact that the
county DHFS is a governmental unit separate from the DA's office?
- 3) Is the DA's ethical duty affected if the contacts with the
parents could affect separate criminal actions against them?
Opinion
In representing a client, a lawyer shall not communicate about the
subject of the representation with a party the lawyer knows to be
represented by another lawyer in the matter, unless the lawyer has the
consent of the other lawyer or is authorized by law to do so. SCR
20:4.2.
Under the facts set out above, the DA is not directly violating this
rule since the DA is not having contact with the represented parties.
However, if this contact violates the rule, the rule could still apply
to the DA who directed that the contact occur or knew it was occurring
by a person over whom the DA had direct supervisory authority and did
not stop it. Under SCR 20:8.4(a), it is professional misconduct for a
lawyer to violate the rules of professional conduct through the acts of
another.
Under Rule 4.2, contact with a represented party is not unethical if
it is "authorized by law." DHFS workers are authorized by law to conduct
investigations and report their results to the court in CHIPS cases.
These investigations are expected to include assessment of the child's
situation and proposals to deal with the problems that led to the CHIPS
petition. See, e.g., Wis. Stat. 46.22, 48.069, 48.08, 48.33, 48.57.
Those investigations would normally and logically be expected to include
contacts with the parents. It is difficult to see how DHFS could do an
adequate investigation of the situation that did not include contact
with, and input from, the parents. That is especially true since the
report to the court may include recommendations on treatment for the
parents and on whether the child should remain in the parental home.
Wis. Stat. 48.33(1)(f) and (2).
Contact by DHFS workers with represented parents are "authorized by
law" when the workers are carrying out their statutory responsibilities.
Accordingly, when they are carrying out such responsibilities, their
contacts do not violate Rule 4.2.
Many CHIPS cases include allegations of criminal assault, abuse or
neglect by parents, so DHFS investigations may affect separate criminal
proceedings. However, that does not affect whether these contacts are
ethical because Rule 4.2 is not dependent upon whether the contacts it
prohibits have criminal or civil implications.
Be that as it may, contacts by DHFS workers are not without ethical
limitations in this situation. DHFS workers are not criminal
investigators and lack law enforcement authority except to take children
into physical custody in limited situations. Wis. Stat. 48.08(2).
Accordingly, if the DHFS investigation has gone outside of its statutory
responsibilities to focus on criminal matters not related to those
responsibilities, DHFS contacts with represented parents are no longer
authorized by law. At that point, the DA who directs such contacts
violates SCR 20:4.2. A district attorney who authorizes such contacts by
not acting to stop contact by actions of which the DA is aware are being
committed by a person over whom the DA has direct supervisory authority
also violates SCR 20:4.2.
Wisconsin Lawyer