Twenty One Attorneys in Pink Bow Ties

An attorney who has been charged by the Illinois Administrator with unauthorized communication with a represented person has admitted that he spoke to his client’s co-defendant but denies that Rule 4.2 applies to such communications.

I admit that I met with [represented defendant] McDonald. I first told him that [his attorney] McMahon didn’t want me to talk to McDonald and I had McDonald sign a document that he knew McMahon did not want us to talk but that he wanted to talk with me. I told McDonald that I was representing Murry, pro bono, that is for free, and I explained my strategy of how I was going to defend Murry. McDonald told me that McMahon wanted McDonald to plead guilty and then testify against Murry.

I did not seek the consent of McMahon since I did not need it. [See attached February 4, 2015 letter to ARDC employee Coleman for a detailed account, with accompanying case law, of my right to speak to McDonald without having to have the permission of McMahon.

From his response letter to the ARDC investigation (appended to the answer)

For an attorney to be in violation of Rule 4.2, two major conditions must be present. First, the naughty attorney must be in an adversarial position to the other attorney, i.e., prosecutor vs. criminal defendant; petitioner vs. respondent; civil plaintiff vs. civil defendant. And the federal courts have held that it is best to maintain a narrow reading and cautious approach to any local rule of professional conduct prohibiting attorneys from contacting represented parties. United States vs. Ward, 895 F.Supp. 1000 (ND 111, 1995) Illinois’ professional conduct Rule 4.2 prohibits contact with a party represented by another attorney regarding the subject of the representation. K.L. vs. Edgar, 945 F.Supp. 167 (ND 111, 1996) The prohibition against any communications by a lawyer for one party with the opposing party prevents unprincipled attorneys from circumventing opposing counsel to obtain careless statements from adverse parties. Guillen vs. City of Chicago, 956 F.Supp. 1416 (N.D. 111., 1997) Thus, the only attorneys who are prohibited from talking to another lawyer’s client are if they are adversaries in the same manner, lawsuit or case, i.e., opposing parties in the same matter. Co-defendants in a criminal case are not opposing parties…

I am neither the prosecutor in the case against Mr. McDonald, nor his opponent. I am not involved in his case at all. Neither I nor my client, Mr. Murry, is involved in his case, People of the State of Illinois vs. McDonald, and we wish him the best of luck. Thus, Rule 4.2 does not apply to me and it makes no difference if Mr. McDonald is represented by one misguided public defender or by twenty-one attorneys in pink bow ties. I am not enjoined from talking to him to find out how he will testify.

I have actually litigated this issue in In re W.E. Thompson, where the D.C. Court of Appeals held that the earlier version of the rule applies to co-defendants in criminal cases.

Thompson was counsel for Walker in a criminal case. Brent, a codefendant, was represented by Kim Taylor. The first communication occurred after Thompson began to suspect that Brent, purportedly a friend of Walker’s, planned to negotiate a plea of guilty in return for his testimony against Walker. Thompson told Brent how he had forcefully cross-examined a codefendant in a prior case who had pled and testified against Thompson’s client. Brent construed the remarks as a warning of a similar fate to befall him if he did likewise. In the second communication, Thompson asked Brent whether Brent’s lawyer was going to permit Brent to testify on behalf of Walker. He did so in spite of Kim Taylor’s refusal to answer the same question when Thompson asked her. The third communication occurred after Brent pled guilty; Thompson approached Brent and attempted to question him…

We find no merit to Thompson’s contention that the evidence is insufficient to sustain the finding that he violated D.R. 7-104(A)(1) by engaging in unauthorized communications with Brent. The evidence is undisputed that Brent was represented by counsel and that Brent and his attorney viewed Brent’s interest as being in conflict with that of Walker, Thompson’s client. Brent and his attorney sought to conceal from Thompson and Walker the fact that Brent intended to testify as a government witness against Walker. Brent’s attorney had refused to discuss the matter with Thompson. The evidence makes abundantly clear that Thompson then began trying to elicit directly from Brent the answer to the question to which Brent’s lawyer would not respond was Brent going to be a government witness against Walker. This conduct violates D.R. 7-104(A)(1).

The late W.E. Thompson (known to the D.C. trial bar as “Wild Bill”) was an interesting person with a lot of talent as a trial attorney but some difficulty in following those pesky rules of professional conduct. (Mike Frisch)