Ethics Opinion 245

By Committee on Professional Ethics

NEW YORK STATE BAR ASSOCIATION
Committee on Professional Ethics

Opinion #245 – 04/28/1972 (22-72)

Topic: Interviewing adverse witness
Digest: It is not improper for defense counsel in a criminal case to interview a witness for the prosecution over the objection of the District Attorney
Code: EC 6-4; DR 6-101(A); DR 7-102; DR 7-104

QUESTION

May the attorney for a defendant in a criminal case interview a witness for the prosecution without the knowledge of, or over the objection of, the District Attorney?

OPINION

It is not improper for an attorney or defendant in a criminal case to interview a witness for the prosecution without the knowledge, or over the objection of, the District Attorney. Failure to thoroughly investigate and marshal the facts by defense counsel could be considered a dereliction of duty. EC 6-4; DR 6-101(A). A lawyer may properly interview any witness or prospective witness for the opposing side in any civil or criminal action without the consent of the opposing counsel or party, as a witness does not “belong” to any party. This does not, of course, sanction any suggestion calculated to induce any witness to suppress evidence or to deviate from the truth. DR 7-102. See also, American College of Trial Lawyers, Code of Trial Conduct Section 15.As prosecution witnesses are not parties nor clients of the prosecution, ABA 101 (1933), the provisions of DR 7-104, prohibiting conversations by a lawyer with a party represented by a lawyer unless he has the prior consent of the lawyer representing such party, are not applicable.

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