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.