The Florida Bar

November 10, 1969

An attorney may not interview the opposing party about the party's anticipated testimony as a witness except with the consent of the opposing party's attorney.

Canons: 9 and 39
Opinions: 65-3, ABA 187

Chairman MacDonald stated the opinion of the committee:

Canon 9 admonishes a lawyer that he “should not in any way communicate upon the subject of controversy with a party represented by counsel. . . .” Canon 39, however, provides that the lawyer “may properly interview any witness or prospective witness for the opposing side in any civil or criminal action without the consent of opposing counsel or party.”

We are asked by the inquirer whether Canon 39 in effect represents an implicit exception to the prohibition set forth in Canon 9, with the corresponding result that he may interview without consent of opposing counsel the opposite party to the extent that the interview relates to prospective testimony of such party as a witness. The question is asked in the particular context of a vehicular accident wherein the defendant is apparently represented by counsel employed by the insurance carrier.

We conclude that Canon 39 is in no way a modification of the prohibition set forth in Canon 9 as quoted above, and that the reference in Canon 39 above cited plainly contemplates witnesses other than parties. Indeed, this is made clear when note is taken of the fact that the consent which is obviated by the provision cited in Canon 39 is that of “opposing counsel or party.” The American Bar Association Committee on Professional Ethics has reached a similar conclusion (see Opinion No. 187).

The fact that the question is asked in the context of an insurance defense situation is not material. That the lawyer is selected and compensated by the insurance carrier hardly prevents his being considered as counsel for the defendant within the purview of Canon 9 (see our Opinion No. 65-3).

[Revised: 08-24-2011]