FLORIDA BAR ETHICS OPINION
January 30, 1975
Advisory ethics opinions are not binding.
An attorney representing a defendant in a civil class action and a related criminal prosecution
may not confer with a person who is both a plaintiff in the class action and a witness for the state
in the criminal case without the consent of the person’s attorney. If the ethical bar to
communication with the civil plaintiff impedes effective representation in the criminal case, the
attorney should discontinue the dual representation.
Vice Chairman Daniels delivered the opinion of the committee:
The inquiring lawyer represents a defendant in both a criminal case and a
civil class action arising out of the same allegedly misleading advertising and
deceptive trade practices. The lawyer states:
I was advised that a person who is a named plaintiff in the class action in the
civil case and a witness for the state in the criminal case, desires to speak to me
privately on facts that could assist me greatly in both cases.
I contacted the attorney for the plaintiff in the civil case and requested
permission to speak to members of the class. I was denied that request.
I have been informed that this person who desires to speak to me feels
intimidated and inhibited by other members being around him and would most
likely not speak openly at a deposition.
We are asked if the lawyer may, under the circumstances, confer with the named plaintiff
in the class action out of the presence of the latter’s counsel. The inquiry must be answered in the
negative. DR 7-104(A)(1) provides:
DR 7-104 Communicating With One of Adverse Interest.
(A) During the course of his representation of a client a lawyer shall not:
(1) Communicate or cause another to communicate on the subject of the
representation with a party he knows to be represented 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 so.
Under DR 7-104(A)(1), the inquirer, while defense counsel in the civil action, cannot
confer with the named plaintiff in the civil action without the consent of and out of the presence
of the latter’s counsel. Moreover, under the stated facts, the inquirer cannot effectively represent
his client in the criminal action if he continues representation of his client in the civil action.
Accordingly, he should not continue the dual representation.