Vol. 70, No. 4, April
1997
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.
Members who desire an ethics opinion should address requests to: State
Bar Professional Ethics Committee, P.O. Box 7158, Madison, WI 53707-7158.
The identities of parties involved in requests for opinions will not be
revealed in published opinions.
Members also can contact Keith Kaap, State Bar ethics consultant, on
the ethics hotline for assistance. Kaap can be reached at the State Bar
Center, (800) 362-8096 or (608) 257-3838 ext. 6168, on Fridays, 8 a.m. to
4:30 p.m. Kaap is available other weekdays from 8 a.m. to noon at (608)
629-5721 (after noon, leave a message, and he'll call back the next business-day
morning). Or, contact Kaap via email .
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. |