ARDC Review Board Recommends 90-day suspension for lawyer who communicated with another party represented by counsel

The respondent represented one of two men (Murray) who was indicted for the murder of Murray’s wife. The other defendant was represented by a public defender. The respondent asked the public defender for permission to interview his client, but the public defender refused. The Hearing Board and the Review Board found a violation of Rule 4.2.

The Panel explains the facts in this way:

In January 2013, James Murray and Travon McDonald were indicted for the murder of Murray’s wife. They were named as co-defendants in a single indictment. Respondent represented Murray, and Assistant Public Defender David McMahon represented McDonald.In December 2014, while McMahon was meeting with McDonald at the jail, Respondent and Gonzalez showed up to talk with McDonald. McMahon told Respondent that he represented McDonald and that Respondent could not speak with McDonald. McMahon gave Respondent his name and phone number so that Respondent could contact McMahon if he wanted to discuss the case. Respondent left without speaking to McDonald, and McMahon thought his position – that Respondent was not permitted to speak with McDonald – was clear.Respondent returned to the jail two days later and met with McDonald. Respondent spoke with McDonald about Respondent’s strategy in defending Murray, and McDonald told Respondent that his attorney wanted him to plead guilty and testify against McDonald.

The respondent argued that Rule 4.2 did not apply to his conduct. The Panel disagreed and explained its reasoning:

Rule 4.2 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 to do so by law or a court order.” Ill. R. Prof. Cond. 4.2 (2010) (emphasis added). Respondent argues that, based upon the language emphasized above, Rule 4.2 did not apply to his communication with McDonald.
Respondent’s challenge raises a question of law about whether Rule 4.2 applies to his conduct. We review questions of law, such as whether circumstances shown by undisputed facts constitute misconduct and what interpretation is to be given to rules, under a de novo standard. In re Morelli, 01 CH 120 (Review Bd., March 2, 2005), at 10, approved and confirmed, M.R. 20136 (May 20, 2005); In re Edmonds, 2014 IL 117696, par. 36.
Respondent first contends that McDonald’s case was different and separate from Murray’s case, in that Murray was not a party to McDonald’s proceeding and McDonald was not a party to Murray’s proceeding. He thus argues that, because McDonald and Murray were not
involved in the same matter, the “in the matter” language in Rule 4.2, and therefore the rule itself, did not apply to this situation.
We disagree with Respondent’s interpretation of Rule 4.2, which was amended in 2010 to bar communication with represented persons, not just parties. The 2010 amendment brought Illinois Rule 4.2 in line with ABA Model Rule 4.2, which is designed to protect a represented person “?whose interests are potentially distinct from those of the client on whose behalf the communicating lawyer is acting.'” Annotated Model Rules of Professional Conduct, at 445 (quoting ABA Formal Ethics Op. 95-396 (1995)).
We believe there is no doubt that Respondent communicated with a person he knew to be represented by another lawyer “in the matter” within the meaning of Rule 4.2. Murray and McDonald were co-defendants in the same criminal case and charged under the same indictment with the murder of the same person during the same event. Moreover, the interests of Murray and McDonald were clearly distinct, as McDonald had purportedly made a statement implicating Murray in the murder. Thus, both the letter and the spirit of Rule 4.2 applied here.
Respondent next argues that the only conversation that Rule 4.2 prohibits is one that is about “the subject of the representation,” and that the Administrator presented insufficient proof that, when he spoke to McDonald, they spoke about “the subject of the representation.” He contends that the Administrator presented no evidence of what he and McDonald talked about, and that the Hearing Board committed error by assuming facts not in evidence.
Again, we disagree. Respondent stated in his answer to the complaint that, when he met with McDonald, he explained his strategy about how he was going to defend Murray, and McDonald told him that his attorney wanted him to plead guilty and testify against Murray.  

Comment: I can understand why the public defender was upset that the respondent ignored his instructions and interviewed his client. The public defender was involved in plea negotiations and did not want those negotiations to be disturbed. The panel’s conclusion that the respondent had a “sincere” but “patently wrong” belief that he could interview the other defendant is correct but impossible to reconcile with the Rules of Professional Conduct.

Ed Clinton, Jr.

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