Government Lawyers and No-Contact

Whether a prosecutor may speak with a person who already has a lawyer is a question for Rule 4.2, not Rule 3.8. Rule 4.2 is the Model Rules' general no-contact rule, and it binds every lawyer, prosecutors and agency lawyers included. A lawyer representing a client may not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless that lawyer consents or the communication is authorized by law or a court order. The paragraphs of Rule 3.8 govern the charging decision and the disclosure of favorable evidence¹, and its protections for the unrepresented accused do not reach a suspect who has counsel. On the question of contact, the prosecutor therefore turns to the rule every lawyer follows.

The rule protects three things a represented person depends on. It keeps an opposing lawyer from interfering with the relationship between the person and that person's own lawyer. It guards against an inadvertent, uncounseled disclosure by a layperson whose lawyer is absent. And it prevents a lawyer from obtaining a statement that would count as an admission under the rules of evidence.² A person who retains counsel has said that the matter is beyond the person's own ability to handle, and a lawyer on the other side knows how to draw out statements that help the lawyer's own client. The rule therefore makes the other lawyer's consent, not the represented person's willingness to talk, the ordinary key to the door.

Government practice strains that design. Investigators, and the lawyers who direct them, often need to hear from suspects and witnesses before anyone has been charged, and some of those people will already have retained counsel. If the rule applied to an investigation with the force it has in a civil dispute between private parties, a subject could block questioning, covert contacts, and ordinary information-gathering simply by hiring a lawyer early. The clause permitting contact “authorized by law” accommodates that need and, in a law enforcement investigation, shifts the balance toward allowing contact. The accommodation has a limit, because its reasons fade once the government has committed itself formally against a particular person. A suspect with a lawyer falls under Rule 4.2 and not under the waiver limits that protect the unrepresented, and the two subsections below follow that suspect through the investigation. The first covers the period before charge, when the balance favors the investigation. The second covers the period after arrest or charge, when the rule applies strictly and the prosecutor must deal through counsel.

Pre-Charge Investigations

Rule 4.2 applies to a prosecutor as it applies to every lawyer, although the setting of a criminal investigation gives prosecutors more latitude than other lawyers have. They still may not undermine a represented defendant's relationship with counsel through improper contact.³ The rule bars a lawyer from communicating “about the subject of the representation with a person 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 to do so by law or a court order.”⁴ For investigators, the working phrase is “authorized to do so by law.” Non-custodial communications before indictment, in overt and covert investigations alike, have long been understood to fall within it. Comment 5 and the cases upholding the investigatory exception rest on the need for government lawyers to run pre-arrest and pre-charge investigations that put them in touch with people who have retained counsel.⁵

Each of the rule's three protections would defeat an investigation if applied without modification, because the contact itself, made without a lawyer's involvement, is how the evidence is gathered.⁶ The ordinary rule suits a dispute between adversaries who know each other. A criminal inquiry is different, and that difference is why the “authorized by law” clause carries so much weight here.

Covert work is the setting the exception was built for. When government lawyers participate in or supervise surveillance or undercover investigations of suspected criminal enterprises, they or operatives acting at their direction must contact the people suspected of illegal activity, and some of those people or entities will have standing counsel.⁷ Notifying that counsel in advance would stymie the investigation, destroy any undercover element of the operation, and alert the suspects under surveillance.⁸ Sting operations, decoys, informants, and undercover operatives work only while the target does not know the government is on the other end.⁹ An operative who contacts a suspect with standing counsel, at a government lawyer's direction and before any arrest or charge, therefore acts with legal authorization, and the lawyer who directed the contact has not violated the rule.

For the same reason, a suspect cannot freeze an investigation by hiring a lawyer. A criminal suspect may not evade the government's otherwise legitimate use of surveillance, informants, or undercover operations by retaining counsel before or while carrying on criminal activities.¹⁰ If a retainer froze government contact, the protection would belong to exactly the people with the means and the motive to buy it, and any continuing enterprise could secure immunity from investigation by paying a lawyer.

The accommodation lasts only as long as its justification, the public interest in effective law enforcement during the investigation, and that justification weakens once the government commits itself against a particular person. After a represented person has been taken into custody, charged, or named as a defendant in a government-initiated civil proceeding, the balance swings sharply back toward strict application of the no-contact rule.¹¹

Hypothetical Illustration

A federal prosecutor supervising a narcotics investigation directs an informant to buy a quantity of drugs from a supplier and to record the meeting. The supplier has a lawyer who handles the supplier's business affairs. No one has been arrested or charged, and the prosecutor tells the lawyer nothing. The contact is non-custodial, comes before indictment, and is part of a covert investigation, so it is authorized by law. Telling the supplier's lawyer would have ended the operation before it began.

Months later the supplier is arrested and indicted, and the same lawyer enters an appearance. The prosecutor now wants the informant to ask the supplier about the case over lunch. The investigatory exception no longer carries the contact, because the person is charged and the strict form of the rule has returned. The prosecutor must deal through the lawyer, obtain the lawyer's consent, or seek a court's authorization.

The arrest and indictment moved the second contact out of the exception. Before them, secrecy served an ongoing inquiry into criminal activity. Afterward, a case against a named defendant is pending and counsel is in it. The speaker did not change, since an informant contacting the supplier on the prosecutor's behalf stands in the same position at both stages.

One caution qualifies the general rule. Covert activity before arrest or charge generally falls outside the no-contact rule, but some authority holds that especially overt interference with the attorney-client relationship may become so egregious that it removes the conduct from the authorized-by-law exception.¹² The principle is narrow, and it rests on some authority rather than a settled rule. Pre-charge contact is allowed because investigators need to gather information about criminal activity without alerting the suspect. Conduct whose evident object is to damage the suspect's relationship with counsel serves a different end. A stem that shows only secrecy and no notice to counsel has not supplied the facts that trigger the caution.

Exam Analysis Steps

Because the exception turns on timing and on the kind of contact, a problem about a government lawyer's dealings with a person who has a lawyer is best run in a fixed order:

Confirm that the government lawyer knows the person is represented by another lawyer in the matter, since the no-contact rule reaches only persons known to be represented.
Ask whether the other lawyer has consented or a court has authorized the contact, either of which permits it.
Ask whether the person has been taken into custody, charged, or named as a defendant in a government-initiated civil proceeding. If so, the strict form of the rule governs and the investigatory exception is unavailable.
If not, ask whether the contact is a non-custodial part of an overt or covert law enforcement investigation before indictment. If it is, the authorized-by-law exception covers it, whether the lawyer or an operative acting at the lawyer's direction makes it.
Ask whether the facts show an especially egregious interference with the attorney-client relationship, which some authority treats as removing the conduct from the exception.

Step three does the most work on an exam. A stem will often mention that the target has a lawyer without saying whether the target has been arrested or charged. Representation by itself decides nothing, and the point in the case at which the contact occurs decides most of the answer.

After Arrest or Charge

The latitude described above lasts only until the government commits itself formally against an identified person. Once a represented person has been taken into custody, charged, or named as a defendant in a government-initiated civil proceeding, the balance swings heavily back toward strict application of the no-contact rule, and the government lawyer needs the other lawyer's consent or a court order.¹⁴ Custody and criminal charge are the familiar markers. The civil trigger carries the same logic to enforcement suits brought by agencies, where the government lawyer who has filed a complaint faces the opposing party's counsel as an adversary in a pending case. For prosecutors, strict application means a firm duty not to interfere with the attorney-client relationship through improper ex parte contacts, meaning communications made without the lawyer's knowledge, with criminal defendants known to be represented.¹⁵

Both sides of the balance have moved. The investigatory exception rests on secrecy, because notifying a suspect's standing counsel in advance would defeat an undercover operation and alert the people under surveillance.¹⁶ After arrest or charge nothing is left to conceal. The person knows the government is pursuing the case and has a lawyer working against it, so the law enforcement need behind the exception fades. The dangers the rule guards against are at their height. A person in custody or under indictment is the one most likely to give a trained adversary something damaging, and the constitutional rights to remain silent and to counsel are directly in play.¹⁷

The manager's willingness changes nothing, because the rule puts the key to the door in the other lawyer's hands. A person who agrees to talk is also the person whose conversation the rule worries about, since an eager, uncounseled account is exactly what the lawyer's presence would have shaped. Where the government has a real reason to speak with a charged person, the rule offers a lawful path, the court-order exception. Even when exigent circumstances arguably justify an ex parte contact after arrest, charge, or civil complaint, the government should seek judicial permission and should not rely on its own view that the matter is urgent.¹⁸ The structure parallels Rule 3.8(d), under which only a tribunal can relieve the prosecutor of the disclosure duty.¹⁹ A government lawyer who wants the contact has a stake in concluding that it is justified, and a neutral judge can weigh urgency against the represented person's rights without one. The burden of asking is slight. Summary proceedings before a judge or magistrate, like those used to obtain a search warrant, are available, so requiring court permission should not prevent prompt action when prompt action is needed.²⁰

Two rare circumstances can make a communication appropriate even without the consent or knowledge of the person's counsel. One is a risk of death or bodily harm, as when the person is a threat to another or is at risk of self-harm. The other arises when a represented person initiates the communication with the government because he does not believe counsel is acting in his best interest.²¹ Both are real exceptions, and both still point toward a judge. A judicial officer should review whether the proposed communication is justified under the circumstances and whether the represented person has voluntarily, knowingly, and intelligently waived the rights to remain silent and to counsel.²² Each exception depends on a fact the government is poorly placed to judge for itself. Whether a danger is serious enough to justify bypassing counsel, and whether a client who distrusts his lawyer understands what it means to give up counsel's help, are questions on which the government has a stake in the answer. A neutral reviewer supplies the check that the government's own assessment cannot.

The instinct that loses points on an exam is to treat the defendant's own telephone call as the end of the question.

Hypothetical Illustration

Two weeks after indictment, a represented defendant calls the prosecutor's office and says his lawyer has stopped returning messages and that he wants to give a statement to straighten things out. The prosecutor is tempted to take the statement on the spot because he made the call. She applies instead to a magistrate for permission, and the magistrate considers whether contact is justified and whether the defendant understands and knowingly gives up his rights to silence and to counsel. Taking the statement on her own would let the call stand in for a waiver that only a judicial officer's review can confirm.

In a separate matter, a prosecutor learns that an indicted and represented defendant has told a cellmate that a kidnapping victim is alive but running out of time. The risk of death may justify contact without notice to the defense lawyer. Because a magistrate can act quickly, the prosecutor should go to one first. The urgency explains the speed of the application without removing the judge from the process.

Both scenes end the same way, with the contact routed through a judicial officer. An exam stem that reports that the defendant initiated the call, or that time was short, gives the government lawyer a reason to seek the court's permission quickly, not a license to proceed alone. Timing also decides which half of the doctrine applies. Facts placing the contact before arrest or charge point back to the investigatory exception, while facts placing it after custody, charge, or a civil complaint require the lawyer's consent or a court order. A student who notes only that the person had a lawyer has missed the fact that determines the answer.