UPON THE REQUEST OF A MEMBER OF THE SOUTH CAROLINA BAR, THE ETHICS ADVISORY COMMITTEE HAS RENDERED THIS OPINION ON THE ETHICAL PROPRIETY OF THE INQUIRER’S CONTEMPLATED CONDUCT. THIS COMMITTEE HAS NO DISCIPLINARY AUTHORITY. LAWYER DISCIPLINE IS ADMINISTERED SOLELY BY THE SOUTH CAROLINA SUPREME COURT THROUGH ITS COMMISSION ON LAWYER CONDUCT.
Ethics Advisory Opinion 94-07
Lawyer A is representing a defendant and wishes to communicate with the victim injured in a traffic accident in which his client is believed to be at fault. There is a possibility of criminal charges in the future against the defendant arising out of the circumstances of the traffic accident. Lawyer A wishes to contact the injured victim in an attempt to settle the case, perhaps by providing monetary restitution, in hopes of forestalling the bringing of criminal charges. The insurance company for the defendant has already paid the claim and received a release from the victim, under the terms of the defendant's automobile insurance liability policy. The victim is not officially represented by counsel, but the city or county attorney, police officer, or other official may prosecute a criminal charge against the defendant in the future.
Question:
May the lawyer communicate with the victim and make an offer of restitution in order to forestall criminal charges from being filed against his client?
Summary:
A lawyer may communicate with the victim of his client's possibly criminal behavior, subject to limitations on the scope of the communication.
Opinion:
Several of the Rules are implicated by the factual scenario set forth.
Rule 4.2 prohibits a lawyer from contacting an adverse party who is represented by counsel. The question, as presented, queries by inference whether the involvement of a prosecutor on behalf of the state could be considered to be a "lawyer" representing the victim for purposes of the rule. The answer to this question draws upon substantive law, rather than ethical rules, and is technically beyond the scope of the Committee's role. However, on the assumption that substantive law would conclude that a state prosecutor does not "represent" a crime victim in the course of carrying out his official duties, the Committee is of the opinion that the victim is unrepresented for purposes of this matter. For that reason, Rule 4.2 is inapplicable.
The issue of contact with the victim is then governed by Rule 4.3, which permits the communication, but imposes limitations on the scope and form of the communication. The lawyer is required to clearly inform the unrepresented party that he is not disinterested in the matter, and to affirmatively advise the unrepresented party of the nature of his interest, i.e., that he represents the defendant. He may not give advice to the unrepresented party, and some jurisdictions have held that this precludes the lawyer's preparation of legal papers for the unrepresented party's signature. See Tennessee Ethics Opinion 81F-21 (1981); North Carolina Ethics Opinion 125 (1977) ; Virginia Ethics Opinion 689 (1985). We believe the better view is that the lawyer may prepare non-substantive papers for the party's signature, such as an acceptance of service, but is still subject to the limitation that he may not misrepresent or overreach. Dolan v. Hickey, 431 N.E.2d 229 (Mass. 1982). This would preclude the preparation of a release or other substantive document for the unrepresented party, unless the lawyer clearly advises the unrepresented party to obtain independent legal advice in reviewing the documents. At least one commentator has advised that a lawyer in this situation is in a "precarious" position and might find it advisable to give written notice to the unrepresented party clarifying the lawyer's role and interest in the transaction. C.W. Wolfram, Modern Legal Ethics, § 11.6.3, at 617 (1986).
The factual scenario presented by the inquirer also implicates the possibility of potential criminal liability for obstruction of justice, if the lawyer's offer of settlement on behalf of his client is or could be construed as an attempt to silence the victim or procure the victim agreement not to prosecute criminal charges. The Committee offers no opinion on this issue, since it is beyond the scope of the Committee's role. We note, however, that if the lawyer's conduct is a violation of criminal law, his conduct would be impacted by Model Rule 8.4(b).