Communication between prosecutor and victim subject of proposed LEO

The Virginia State Bar is seeking comment on a proposed legal ethics opinion on what communication is permitted between a prosecutor and a victim represented by counsel in the criminal case handled by the prosecutor and a related civil case.

Proposed advisory Legal Ethics Opinion 1895 is available to read on the VSB’s website. The bar will accept written comments in favor or opposition of the proposed opinion through Nov. 1. Comments may be submitted to [email protected].

What it says

According to a Sept. 17 draft of the proposed legal ethics opinion, proposed LEO 1895 seeks to answer a simple question: Whether Rule 4.2 of the VSB Rules of Professional Conduct prohibits a prosecutor from communicating with a victim who is represented by counsel in both the criminal case being handled by the prosecutor and in a related civil case “based on the same facts as the criminal case.”

The rule at issue, Rule 4.2, states that “in representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized by law to do so.”

At issue in the proposed legal ethics opinion is the last bit — “or is authorized by law to do so.”

In their analysis, the VSB Standing Committee on Legal Ethics ruled that the answer to the question posed in the ethics opinion is a “qualified no; some, but not all, communications by the prosecutor are authorized by law.”

“The prosecutor’s communications with a represented victim are ‘authorized by law’ for purposes of Rule 4.2 when the communications are necessary to fulfill the prosecutor’s duties under applicable law governing crime victims’ rights,” proposed LEO 1895 states. However, per the proposed opinion, communications that are not authorized by law are prohibited, and the prosecutor must not communicate with the victim directly unless the victim’s lawyer permits the communication.

Related LEO

This is the second proposed legal ethics opinion to deal with overlapping of criminal and civil matters in recent years.

LEO 1890, which was approved by the Supreme Court of Virginia on Jan. 6, “aptly sums up the committee’s position on the application of Rule 4.2 to overlapping civil and criminal matters,” according to proposed LEO 1895.

“The Rule limits communications with represented persons only when the person is represented ‘in the matter,’ so communication with a represented person about a different ‘matter’ than the one in which the person is represented is permissible even if the communication involves facts that also relate to the matter in which the person is represented,” LEO 1890 states. In other words, prosecutors are allowed to communicate with the victim in a related criminal matter even if the communication involves subject matter related to a civil proceeding.

Additionally, the committee cited New York State Bar Association Ethics Opinion 904 in its analysis, which concluded that “criminal investigation and civil restitution claim[s] are ‘two related matters rather than a single unitary matter.’”

VSB’s analysis

In making the conclusions drawn by proposed LEO 1895, the VSB Standing Committee on Legal Ethics drew on precedent from prior ethics opinions, saying “it is a straightforward conclusion” that civil and criminal cases are not the same “subject of the representation for purposes of Rule 4.2.”

But the committee said the query answered by proposed LEO 1895 “is not as straightforward,” as the question covers the scenario where the victim’s lawyer represents the victim in both the civil and criminal cases.

“Counsel for a victim or other witness in a criminal case has a legitimate role to play in the criminal process, by advising the victim on what to expect, monitoring the prosecution of the case, and protecting the victim’s rights including the right against self-incrimination if relevant,” the opinion states.

Thus, the committee cites rules placed in Article I, Section 8-A of the Virginia Constitution. The article lists rights of a victim of a crime, which include the right to receive timely notification of judicial proceedings, the right to know if the offender has been released from custody and the right to confer with the prosecution, among others.

The VSB ethics committee, in answering the proposed ethical dilemma with a “qualified no,” ruled communications covered by this article of the Virginia Constitution are “authorized by law” for purposes of Rule 4.2.

“The prosecutor’s communications with a represented victim are ‘authorized by law’ for purposes of Rule 4.2 when the communications are necessary to fulfill the prosecutor’s duties under applicable law governing crime victims’ rights,” the opinion states. “Communications that are not authorized by law are prohibited by Rule 4.2 and the prosecutor must not communicate directly with the victim unless the victim’s lawyer consents to the communication.”