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Communicating with a Represented Person through an Agent

Adopted: July 25, 2003

Opinion rules that a lawyer may not proffer evidence gained during a private investigator's verbal communication with an opposing party known to be represented by legal counsel unless the lawyer discloses the source of the evidence to the opposing lawyer and to the court prior to the proffer.

Editor's Note: This inquiry was originally submitted to the Ethics Committee in 2001. Since that time, four proposed responses to the inquiry were published for comment under the designation Proposed 2001 Formal Ethics Opinion 13 . Because of the delay in publication, the proposed opinion has been renumbered as a 2003 ethics opinion to reflect that citations in the opinion are to the Revised Rules of Professional Conduct (2003).

Inquiry #1:

Attorney represents the employer and the workers' compensation carrier in a workers' compensation case filed by Plaintiff, an injured employee. Attorney knows that Plaintiff is represented by legal counsel. Attorney hired a private investigator to watch Plaintiff to see if Plaintiff engaged in any physical activity indicating that he is not injured to the extent that he claims. Attorney instructed the private investigator not to engage Plaintiff in conversation. During the surveillance, the investigator ignored Attorney's instructions and engaged Plaintiff in a conversation about a motel property located next to Plaintiff's property. As a pretext for the communication, the investigator told Plaintiff he was interested in purchasing the motel property. During the conversation, Plaintiff stated that he was repairing the motel property from storm damage. The investigator's observations of Plaintiff during the remainder of the surveillance, without further verbal contact with Plaintiff, indicate that Plaintiff is physically able to work.

May Attorney proffer the private investigator's testimony about his conversation with Plaintiff as evidence in the workers' compensation trial?

Opinion #1:

Rule 4.2(a) of the Rules of Professional Conduct (2003) prohibits 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 other lawyer consents or the communication is authorized by law. A lawyer may not do through an agent that which the lawyer is prohibited by the Revised Rules of Professional Conduct (2003) from doing himself. See  Rule 5.3.

The Ethics Committee declines to opine on the admissibility of evidence. However, to discourage unauthorized communications by an agent of a lawyer and to protect the client-lawyer relationship, the lawyer may not proffer the evidence of the communication with the represented person, even if the lawyer made a reasonable effort to prevent the contact, unless the lawyer makes full disclosure of the source of the information to opposing counsel and to the court prior to the proffer of the evidence. See  Rule 3.3, Rule 4.1, and ABA Comm. On Ethics and Professional Responsibility, Formal Op. 95-396 (1995).

Inquiry #2:

If the information gained from the investigator's conversation with Plaintiff may not be used at trial, may Attorney still offer the evidence gained through the investigator's visual observations of Plaintiff?

Opinion #2:

Yes. Visual observation is not a direct contact or communication with a represented person and does not violate Rule 4.2(a).

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