LEO: Communication With One of Adverse LE Op. 1323
Communication With One of Adverse Interest: Prosecutor
Sending Letter to Defense Counsel Regarding Plea
Agreement and Forwarding a Copy of the Letter
to the Defendant.
February 27, 1990
You have advised that Client "X" is represented by Attorney "A" in a
criminal matter. Prosecutor has reason to believe that "A" has not
communicated with "X" regarding to plea agreement offer made by prosecutor
and the offer is about to expire.
You have inquired as to the propriety of the prosecutor writing a letter
to "A" reminding him of the expiration date and sending a copy of the
letter to "X".
The appropriate and controlling disciplinary rule relative to the
prosecutor's sending of such a copy is DR:7-103(A)(1) which prohibits a
lawyer, during the course of his representation of a client, from
communicating on the subject of the representation with a party he knows
to be represented by a lawyer in that matter unless he has the prior
consent of the lawyer representing such other party or is authorized by
law to do so.
The Committee has earlier opined that the applicable provisions of the
Code of Professional Responsibility absolutely bar direct contact between
an attorney and opposing party, further indicating that "[n]either the
fact that the attorney is representing himself nor his claim that the
[opposing] attorney is wrongfully withholding information from [his
client] would constitute an exception to the rule." (emphasis added) (See
LE Op. 521) In addition, the Committee has opined that it would be
improper for a buyer's attorney in a real estate transaction to present a
power of attorney to a seller who is represented by counsel, unless
seller's attorney has consented to the same. (See LE Op. 1149; see also
LE Op. 963 and Maryland State Bar Association Ethics Opinions Nos. 77-49 (
February 28, 1977) and 77-68 (May 25, 1977))
Although those earlier opinions considered the application of the
disciplinary rule in the context of civil matters, the Committee is of the
view that sending a copy of the letter as described in your inquiry is
similarly improper and proscribed by DR:7-103(A)(1) in criminal matters.
The Committee expressly adopts the conclusion of ABA Informal Opinion 1373
and finds that constitutional protections which afford a criminal
defendant a right to counsel underscore the need for the prosecutor to
communicate with the defendant solely through defense counsel.
The Committee is further of the view that, since the proscription of DR:
7-103(A)(1) is eminently clear, the prosecutor's belief that defense
counsel may not have communicated the plea agreement offer to the
defendant does not constitute sufficient reason for an exception.
Furthermore, it is clear that defense counsel is required to keep his
client reasonably informed about matters in which his services are being
rendered and to inform his client of facts pertinent to the matter and of
communications from another party that may significantly affect settlement
or resolution of the matter. (See DR:6-101(C) and (D); see also LE Op.
1264) It is therefore the Committee's opinion that where the prosecutor
has reason to believe that the defense counsel is not communicating the
offer to the defendant, such information should be brought to the
attention of the appropriate disciplinary authorities as required by DR:
Committee Opinion February 27, 1990
See also LE Op. 1431.