can police contact witness who retained attorney

It's perfectly legal for defense attorneys and their investigators to interview prosecution witnesses in most instances. (Among the instances in which it's not are those involving harassment or threats.)

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What happens if a lawyer does not speak to a witness?

Witnesses are typically permitted to meet and communicate with lawyers before and after they testify. But a difficult situation may arise when a witness talks with a lawyer at some point during his or her testimony, that is, before all direct and cross examination has been completed. To many people inside and outside of the legal profession, this seems suspect or just plain wrong.

Is it legal for defense attorneys to interview prosecution witnesses?

Jan 22, 2020 · Whether the Department attorney knows that a person (a defendant, a target, a subject or a witness) is represented by a lawyer. The contact rule only applies where the Department attorney knows that the person is represented. Department attorneys are not required in all situations to inquire of a person whether he is represented by counsel.

How does a defense lawyer deal with reluctant witnesses?

Jan 12, 2017 · Witnesses who have their own lawyer. Rule 4.2 states “ [i]n 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.”.

Can a Florida judge restrict a lawyer from communicating with witnesses?

Feb 11, 2014 · If you have been detained by the police because the police believe that you may be a witness to a crime, your constitutional rights may have been violated and you need experienced legal counsel. When the facts in the case are particularly egregious and damages are not merely nominal, contact the Lawyers of Thomas H. Roberts, and Associates, P.C. and Hull Street Law …

Can litigants contact each other?

Can I communicate directly with opposing counsel?

Can represented clients talk to each other?

When can a lawyer communicate about a legal matter with someone who already has a lawyer?

Do lawyers have to talk to each other?

Can defendant contact plaintiff directly?

Can a lawyer contact the other party?

What is the no contact rule in law?

How do you know if your lawyer is selling you out?

Should a lawyer communicate with another party whom the lawyer knows is represented by counsel?

What is it called when a defendant represents himself?

Can a paralegal communicate with an opposing party?

What is the law of contacts with represented persons?

For purposes of the rule on contacts with represented persons, the term "law" may include: 1) a specific statute; 2) a court order; or 3) case law. Several jurisdictions have established by case law a law enforcement investigatory exception to the contact rule in limited circumstances. Department attorneys should be aware under what circumstances ...

When should department attorneys consider the following issues?

Department attorneys should consider the following issues when they analyze the relevant rule of professional conduct regarding communications with represented persons. Whether the Department attorney knows that a person (a defendant, a target, a subject or a witness) is represented by a lawyer. The contact rule only applies where ...

What should department attorneys be guided by?

Department attorneys should be guided by the relevant state's or federal district court's rule and interpretations of that rule and should not rely exclusively on the ABA Model Rule and its interpretation in determining what is appropriate conduct, unless directed to do so by the relevant rules of professional conduct.

What is the ABA model rule of professional conduct?

Rule 4.2 of the American Bar Association's Model Rules of Professional Conduct provides: "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 by law or a court order." (2002). Department attorneys should be aware that Comment 5 to Model Rule 4.2 provides that " [t]he fact that a communication does not violate a state or federal constitutional right is insufficient to establish that the communication is permissible under this Rule." Although the rule may vary from state to state, each state has adopted a rule of professional conduct that governs communications with represented persons. Department attorneys should be guided by the relevant state's or federal district court's rule and interpretations of that rule and should not rely exclusively on the ABA Model Rule and its interpretation in determining what is appropriate conduct, unless directed to do so by the relevant rules of professional conduct. Nonetheless, as a general matter, it may be useful to review ABA Committee on Ethics and Professional Responsibility Formal Opinion 95-396, "Communications with Represented Persons" (July 24, 1995), and the Annotated Model Rules of Professional Conduct published by the ABA Center for Professional Responsibility.

What is a represented person?

The contacts rules vary from state to state in how they define a "represented person" when that "person" is an organizational entity . Some states prohibit communications only with those high-level employees who can bind the organization in the matter on which the organization is represented. Other states prohibit communications concerning the matter in representation with persons having managerial responsibility on behalf of the organization. Many states prohibit communications with any person whose act or omission in connection with that matter may be imputed to the organization for purposes of civil or criminal liability. And a number of states preclude contact with a corporate employee or constituent whose statement may constitute an admission on the part of the organization. Many states' contacts rules do not prohibit contact with former employees of a represented organization; however, even when communicating with former employees is permissible, the discussion should not include attorney-client privileged information.

What is contact rule?

The contact rule only governs communications with represented persons about the subject matter for which they are represented.

When does contact rule apply?

Whether the contact rule requires that a formal proceeding be pending or whether it applies before the initiation of a formal proceeding. Most states apply the contact rule to a represented person whether or not a complaint, indictment, or other charging instrument has been filed.

What is the rule for witnesses who do not have a lawyer?

When a lawyer talks with unrepresented third parties, Rule 4.3 requires all of the following: – A lawyer shall not state or imply that the lawyer is disinterested.

What are the three categories of witnesses?

For purposes of this discussion, we will divide witnesses into three general categories. Those are clients, opposing parties, and unrepresented third parties.

What is the rule for representing a client?

Rule 4.2 states “ [i]n 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.”

Can a lawyer represent an organization?

In the case of an organization, this rule prohibits communications by a lawyer for one party concerning the matter in representation with persons having a managerial responsibility on behalf of the organization, and with any other person whose act or omission in connection with that matter may be imputed to the organization for purposes of civil or criminal liability or whose statement may constitute an admission on the part of the organization.

Can a lawyer tell a witness to lie under oath?

A lawyer can never tell a witness to lie under oath. As to all three types of witness, a lawyer may not counsel or assist a witness to testify falsely or offer an inducement to a witness that is prohibited by law.

Is communication allowed with current employees?

Thus, communication with some current employees is also permitted. But, if the other side learns of the communication, the lawyer is going to have to carry the burden of showing that the employee is outside the scope of Rule 4.2.

Can a lawyer ask a witness not to talk to the other side?

With some exceptions, a lawyer ask a witness not to talk to the other side. A lawyer may not request that a witness refrain from voluntarily talking to the opposing party or counsel, unless that witness is: (ii) a relative, employee or agent of a client.

Which amendment states that a search or seizure without a warrant is unreasonable?

Under the United States Supreme Court’s interpretation of the Fourth Amendment, unless that seizure falls under an established exception, any search or seizure conducted without a valid warrant is unreasonable and therefore unconstitutional. Maryland v. Dyson, 527 U.S. 465 (1999); Katz v.

What are the exceptions to warrantless seizure?

There are multiple exceptions to the warrantless seizure prohibition, but the majority of the exceptions presume that the person seized has may have committed some trespass against a state stricture. See, e.g. Chimel v. California, 395 U.S. 752 (1989) (Search Incident to Arrest); Arizona v.

1 attorney answer

You are free to subpoena and attempt to call as a witness any person who can provide admissible and relevant evidence about your case, as long as that witness was properly disclosed in your discovery responses.

Herb Fox

You are free to subpoena and attempt to call as a witness any person who can provide admissible and relevant evidence about your case, as long as that witness was properly disclosed in your discovery responses.

What happens if an attorney becomes a fact witness?

If an attorney becomes a fact witness in his own case, he may be required to resign as counsel. While conversations between an attorney and his clients, and, to a lesser extent, clients’ “agents” may be privileged, interviews of witnesses or other third parties by the lawyer are not.

Where can witnesses be located?

Investigations today almost invariably extend beyond the borders of one particular state. Witnesses or parties may be located anywhere, their mobility abetted by cell phones that can be carried, along with their phone numbers, from state to state, further complicating the one or two-party consent rules.

Why engage an investigator at all?

Given the ever-increasing risks of investigations gone awry, why engage an investigator at all? Because thorough preparation is an ethical responsibility.

What is the legal and ethical responsibility of third parties?

Legal and Ethical Responsibility for the Conduct of Third Parties: Actions of third parties acting under an attorney’s direction, such as investigators, can be imputed to the law firm or organization in the context of attorney ethics.

What is the meaning of "a lawyer shall proceed as is reasonably necessary in the best interest of the organization"?

“If a lawyer for an organization knows that an officer, employee or other person associated with the organization is engaged in action, intends to act or refuses to act… [In] violation of law which reasonably might be imputed to the organization, and is likely to result in substantial injury to the organization, then the lawyer shall proceed as is reasonably necessary in the best interest of the organization.”

Is it necessary to know if an investigator is violating the law?

Thus, it is imperative to know whether the conduct of your investigator is, or is not, violating the law.

Is GPS use illegal in New York?

However, there is a push in many states to outlaw, or at least to regulate, GPS use in covertly tracking individuals. Such use currently remains legal in New York, absent other conduct that would cause illegality. Certain media reports have misinterpreted the filing of criminal charges stemming from covert use of GPS technology in New York and elsewhere. A review of these cases indicates other salient factors triggering the criminal charges: either a statutory prohibition on the conduct (e.g., California [3] ) or “additional conduct” beyond covertly using the GPS which is unlawful, such as violating a stalking statue, or an order of protection.

What to do if the police call you?

IF THE POLICE CALL YOU. Generally, the police won't call you. They'll just come to your door and arrest you. However, if you should receive a telephone call from the police and they start asking you questions, don't expect that you can talk your way out of a situation or explain it away. In fact, don't try. They aren't really listening.

What to do if police leave a business card?

IF THE POLICE LEAVE A BUSINESS CARD TO CALL THEM . If you find a Detective's business card at your door with a note saying "call me", its usually best to call an attorney first. Usually, when you call a Detective, they've already settled on you being their "Perpetrator" and they're simply trying to get you to surrender.

What do you say to be interpreted against you?

ANYTHING YOU SAY WILL BE INTERPRETED AGAINST YOU#N#While the "Miranda Rights" that all police are obligated to inform you of before questioning you apply, remember, if you speak with the police, they are going to be hearing you with "prejudiced ears." That means that anything you say that could be interpreted against you - WILL be interpreted against you. Even things that aren't open to interpretation will be considered against you by them.#N#What you should understand here is you can't talk your way out of it if someone has already submitted a Complaint against you. Don't bother to try. All you'll be doing is digging a deeper hole for yourself.

Do police listen to you when you call them?

They aren't really listening. By the time the police call you or leave a card for you, they've already got their sights set on you and more than likely are just trying to locate you so a police car can be at your front door by the time you get off the phone.

Can a lawyer talk you out of anything?

A lawyer can usually discern whether they actually just want to speak with you to see if you're a witness or if they want to arrest you. Don't believe for a second that you can call them and talk them out of anything. That's not the case.

How to interview witnesses?

The defense can gain significant benefits from trying to interview prosecution witnesses rather than relying on their statements. These include the ability to: 1 gauge witnesses' demeanor and credibility 2 ferret out details of witnesses' stories and strategize as to how to handle their testimony at trial 3 impeach witnesses who say something on the stand that's inconsistent with what they told the defense 4 establish a foundation for arguing witnesses who refuse to speak to the defense are biased against the defendant, and 5 find leads for new evidence and people to interview.

How does the defense benefit from interviewing witnesses?

The defense can gain significant benefits from trying to interview prosecution witnesses rather than relying on their statements . These include the ability to: gauge witnesses' demeanor and credibility. ferret out details of witnesses' stories and strategize as to how to handle their testimony at trial.

What happens if a witness tells a different story at trial?

And if the witness tells a different story at trial, the defendant might be forced to testify to controvert it. (The testimony might open the defendant up to difficult questioning and the jury might be inclined to believe the non-defendant witness in a battle of words.)

How to conduct a defense investigation?

Defense investigation methods can be as informal as talking to potential witnesses on the telephone or as formal as serving a cellphone company with a subpoena demanding call logs. One method that's often effective is in-person interviews of those who know about either the events underlying the charges or the people involved in the case. This includes interviewing even those who might testify for the prosecution.

What is the duty of a defense attorney?

In addition to using court discovery procedures to obtain evidence from the prosecution, defense attorneys have a duty to investigate their clients' cases. Effective lawyers will gather evidence of their own in preparation for trial—and even to see whether the client has a reasonable chance of winning at trial.

What to do if you are facing criminal charges?

If you're facing criminal charges, consult an experienced criminal defense lawyer. Only such a lawyer can protect your rights and effectively investigate your case. An attorney will also be able to tell you what you should—and shouldn't—do to help.

Do witnesses have to talk to the defense before trial?

It's generally up to witnesses and victims to decide whether to talk to the defense before trial. They might not be willing to talk, but a defense attorney or investigator who doesn't ask often doesn't know.

What is the protection of counsel?

protect the privilege against self-incrimination, the presence of counsel is a more effective safeguard against an involuntary waiver of counsel than a mere written or oral warning in the absence of counsel."s s This non-waiver doctrine does not apply if the ques- tioning is in regard to an investigation about matters unrelated to the charges against the accused or if the questioning is in a non- custodial envir~nment.~' The courts have not missed the ethical implications of prosecutorial interrogation of an unrepresented defendant. Im- proper conduct on the part of a prosecuting attorney raises not only constitutional questions but ethical problems as well. The ethical problems stem from ABA Code of Professional Responsibil- ity Disciplinary Rule [hereinafter referred to as DR] 7-104(A)(l). This section prohibits an attorney during the course of his repre- sentation to: "Communicate or cause another to communicate on the subject of the representation with a party he knows to be rep- resented 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 As a member of a governmental entity, a prosecuting attorney is not shielded from his duties and responsibilities as a

What is the Prosecutor's Dilemma 351?

Prosecutor's Dilemma 351 waive the right to counsel in the absence of his counsel. Any state- ments elicited without the presence of counsel, by any agent of the State, are inadmissible regardless of a purported waiver.sa The view is that, "Notwithstanding that warnings alone might suffice to

Is a refusal to submit to the questioning a violation of the defendant's rights?

testify to a refusal to submit to the questioning is violative of the defendant's rights and is excludible.*" The majority of the states appear to conform to the federal

Can a defendant waive his right to counsel?

350 The Journal of the Legal Profession majority view. In these states a defendant may waive his right to have counsel present at an interview if the waiver is clear, explicit, and intelligent." However, the circumstances surrounding the waiver will be carefully scrutini~ed.~' The burden is on the State to show that the waiver meets the requirements, especially if the waiver occurs after the accused has expressed a desire for and has obtained counsel.a2 If counsel has been obtained, the courts view any alleged waiver skepti~ally,~~ and the State must bear a heavier burden in showing a voluntary ~aiver.~' In deciding the admissibility, the trial judge is to look criti- cally at the totality of the circumstances surrounding the waiver.26 An important circumstance is the origin of the interview. It is "critically important that the [defendant] and not the State sought the . . . inter vie^."^“ The fear is that otherwise the waiver is less likely the result of free will but of some coercion, intended or not. Thus, even if the accused has previously requested counsel there is nothing to prevent him from changing his mind:' but he cannot be surreptitiously induced to do so.as The intelligence and articulateness of the accused can also play a role in the court's willingness to believe the waiver volun- tary. Where the accused is shown to be literate, educated, and knowledgeable (especially about his rights), the courts are more likely to believe a waiver to be intelligently made.28 If the accused is seen as illiterate, it is harder to convince the court of a knowl- edgeable waiver.s0 Not all states have followed this reasoning. By constitutional provision New York has extended rights to defendants beyond those contained in the United States Constituti~n.~' In New York, once the accused has requested and obtained counsel, he may not

What are the rules when speaking to police?

General Rules When Speaking with Police Officers. Here are some general rules and factors to consider before or when speaking to police officers. (Also know that being respectful and staying calm can go a long way. The less uneventful your interaction is, the better.) Understand consent.

What to do if you have questions about police?

If you have questions regarding your rights when speaking to the police, contact a criminal defense attorney. An attorney can help you understand your rights, how to best protect them, and if needed, argue to suppress (exclude) any evidence obtained in violation of your rights.

What is the job of a police officer?

The police officer's job—besides protecting and serving the public—is to make arrests. In fact, some police officers are tasked with "arrest goals" or "arrest quotas" that they are expected to achieve each week. When a police officer stops you on the street, in your car, or even knocks on your door at home, chances are good ...

Do you have to consent to a police search?

If a police officer comes to your residence and wants to question you, you don't have to let the officer in or answer any questions. You don't have to consent to any searches unless the officer has a search warrant or can justify the search on an emergency basis, as explained below. Plain view.

Can you withdraw your consent to a police search?

If you do agree to answer a police officer's question or submit to search, keep two things in mind: you can always withdraw your consent if you don't want to continue, and there is no "off the record" when you provide information to the police. The police also don't have to inform you that your consent is optional. Providing I.D.

Can a police officer ask you questions without reciting your Miranda rights?

No "Miranda" needed. If a police officer has not taken you into custody or prevented you from leaving, the officer can ask you questions without reciting your Miranda rights. The information you provide can be used against you. Miranda rights must be read to a person only when the person is being interrogated and is in custody (not free to walk away).

Can a police officer search a car?

Searching the car. During a routine traffic stop, the officer cannot search your car unless the officer has a warrant or a "reasonable belief" that weapons or other evidence of a crime is in the car and the occupants might destroy the contraband.