Ethics Hotline & Opinions

Ethics Docket No. 1990-26

MARYLAND STATE BAR ASSOCIATION, INC.

COMMITTEE ON ETHICS

ETHICS DOCKET NO. 1990-26

Investigator as Agent of Attorney Contacting Someone Represented by Counsel

 

You ask whether an investigator, working as an agent for an attorney, may initiate contact with a surveillance subject, for the limited purpose of verifying the identity of the subject.

Rule 4.2 of the Rules of Professional Conduct states:

"In representing a client, a lawyer shall not communicate about the subject of the representation with a party 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."

The Rule prohibits a lawyer from communicating with another party who is represented by counsel concerning matters which are the subject of the representation. And, a lawyer may not do indirectly, through an investigator or otherwise, what is impermissible under the Rule.

Even if the "surveillance subject" in question is known to be a party represented by counsel, we believe that the limited contact or communication referred to is permissible. The Rule refers only to communication on the subject of the representation and not to the identity of the party.

 

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