Opinion 352
Question Presented
Three defendants are indicted for a felony crime. Indictments are separate and the cases are docketed separately, but all indictments arise out of the same alleged transaction. Each defendant is represented by separate attorneys. The state's case against one of the defendants depends on the state proving that this defendant was acting in concert with the other two while the crime was being committed, although this defendant was not apprehended at the site of the crime. May this defendant's attorney contact and interview the other two defendants without first obtaining the consent of the attorneys representing the other two defendants?
23 Baylor L. Rev. 894 (1972)
NEGOTIATIONS WITH OPPOSING PARTY - INTERVIEWING WITNESS REPRESENTED BY ATTORNEY
When three persons are indicted for one alleged transaction, and all three are represented by an attorney, the attorney for one may not interview any of the others without the consent of the attorney representing the party sought to be interviewed.
Canon 9
Texas Canon 9 provides: "A member should not in any way communicate upon the subject of controversy with a party represented by counsel." Since the indictments arose out of one transaction, each defendant would be considered "a party." Therefore, it would be a violation of Canon 9 for an attorney to communicate with a party to the transaction without first obtaining the consent of the attorney representing this party. It has long been held that where several persons are accused of related thefts, the prosecuting attorney may not interview, in proceeding against one of them, another defendant who is represented by counsel without obtaining the consent of the attorney representing the party sought to be interviewed. Drinker, Legal Ethics, 202. The same rule would apply to the attorney representing the defendants in related crimes. (9-0)
Bluebook Citation
Tex. Comm. On Professional Ethics, Op. 352 (1970)