NYSBA Committee on Professional Ethics
Communication with a Witness
Separate Criminal Indictment
Background: May counsel for the defendant in a criminal case interview the complaining witness, who is the subject of a separate criminal indictment, in which he is represented by counsel, without the consent of such counsel?
Opinion: Under Rule 4.2, a lawyer may not communicate about the subject of a criminal representation with a party the lawyer knows to be represented by another lawyer without the consent of the other lawyer. A non-party witness in a criminal matter is not protected by Rule 4.2. Therefore, a lawyer for a party may communicate with such witness without the consent of counsel who represents the witness in a related matter. However, this does not prevent the witness’ lawyer from advising his client not to speak with anyone about the matter outside the presence of his lawyer.