Tuesday, February 13, 2018

Communication With Client's Co-Defendant Violated Rule 4.2

A report and recommendation from the Illinois Review Board

The Administrator filed a single disciplinary complaint against Respondent and another attorney, charging both with dishonestly taking all of a bond refund in a criminal case where they jointly represented the defendant. The complaint also alleged that, in an unrelated matter, Respondent communicated with a represented person without the consent of that person's attorney.

After a joint hearing at which Respondent and the other attorney represented themselves, the Hearing Board found that the Administrator had not proved the charges related to the bond refund, but had proved the other misconduct. A majority of the Hearing Panel recommended that Respondent be suspended for 90 days. A dissenting member recommended a six-month suspension.

On appeal, Respondent challenged the Hearing Panel Chair's decision denying his discovery request and the Hearing Board's finding that he violated Rule 4.2 of the 2010 Illinois Rules of Professional Conduct by communicating with a represented person without the consent of that person's lawyer. On cross-appeal, the Administrator challenged the Hearing Board's finding of no misconduct in connection with the bond refund. Both parties challenged the Hearing Board's sanction recommendation.

The Review Board found that the Hearing Panel Chair's decision denying Respondent's discovery request was not an abuse of discretion and therefore affirmed it. The Review Board also affirmed the Hearing Board's findings of misconduct, concluding that, as a matter of law, Respondent's meeting with his client's represented co-defendant was a clear violation of Rule 4.2, and that the Hearing Board's finding that the Administrator had not proved misconduct in connection with the bond refund was not against the manifest weight of the evidence.

The Review Board agreed with the Hearing Board's recommendation that, for his misconduct, Respondent be suspended for 90 days.

Analysis

We disagree with Respondent's interpretation of Rule 4.2, which was amended in 2010 to bar communication with represented persons, not just parties. The 2010 amendment brought Illinois Rule 4.2 in line with ABA Model Rule 4.2, which is designed to protect a represented person "?whose interests are potentially distinct from those of the client on whose behalf the communicating lawyer is acting.'" Annotated Model Rules of Professional Conduct, at 445 (quoting ABA Formal Ethics Op. 95-396 (1995)).

We believe there is no doubt that Respondent communicated with a person he knew to be represented by another lawyer "in the matter" within the meaning of Rule 4.2. Murray and McDonald were co-defendants in the same criminal case and charged under the same indictment with the murder of the same person during the same event. Moreover, the interests of Murray and McDonald were clearly distinct, as McDonald had purportedly made a statement implicating Murray in the murder. Thus, both the letter and the spirit of Rule 4.2 applied here.

Respondent next argues that the only conversation that Rule 4.2 prohibits is one that is about "the subject of the representation," and that the Administrator presented insufficient proof that, when he spoke to McDonald, they spoke about "the subject of the representation." He contends that the Administrator presented no evidence of what he and McDonald talked about, and that the Hearing Board committed error by assuming facts not in evidence.

Again, we disagree. Respondent stated in his answer to the complaint that, when he met with McDonald, he explained his strategy about how he was going to defend Murray, and McDonald told him that his attorney wanted him to plead guilty and testify against Murray. (See Answer to Complaint, par. 33.) Therefore, Respondent admitted that his discussion with McDonald concerned the subject of the representation - the criminal case against McDonald and Murray.

Last, Respondent argues that he was authorized by law to talk with McDonald without McMahon's consent, and therefore fell within the exception to Rule 4.2. He contends that Illinois Pattern Jury Instruction 3.10 provides that it is proper for an attorney "to interview or attempt to interview a witness for the purpose of learning the testimony the witness will give." He contends that McDonald was potentially a witness in Murray's criminal case, and Respondent had the right to talk with him to ascertain if or how he would testify.

Respondent's exact contention was rejected in In re Norton, 07 SH 37 (Hearing Bd., Aug. 5, 2008), at 5-6, affirmed in part and reversed in part, (Review Bd., June 8, 2009), approved and confirmed, M.R. 23278 (Sept. 22, 2009), where the Hearing Board stated that IPI Criminal 3.10 is not directed at, and does not address, "communication with a criminal defendant who is represented by counsel."

Consequently, we find no error in the Hearing Board's findings that Rule 4.2 applied to Respondent under the circumstances involved here, and that Respondent violated that rule by speaking with McDonald, whom he knew to be represented by McMahon, who not only had not given consent for Respondent to speak with McDonald but had expressly instructed him not to.

I litigated the same issue - to the same legal conclusion - in the District of Columbia. (Mike Frisch)

https://lawprofessors.typepad.com/legal_profession/2018/02/a-report-and-recommendation-from-the-illinois-review-board-the-administrator-filed-a-single-disciplinary-complaint-against-r.html

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