Ethics Opinion 16-2: Circumstances in Which Lawyers Can, and Cannot, Communicate with Witnesses and Others Who May Be Represented

Question: The Ethics Counselors of the National Association for Public Defense (NAPD) have been asked to address the following scenario:

A Public Defender’s Office (PDO) represents persons who have been civilly committed to state-run mental health facilities. In representing these individuals with regard to eligibility for release from civil commitment, the Public Defender’s Office has requested ex parte access to the facility staff, including doctors and other mental health professionals, for the purpose of witness interviews. The state’s Office of Attorney General (OAG) claims that, as state employees, facility employees are represented by the OAG, and, in that capacity, the OAG has denied the PDO access to facility staff.

1. Does the OAG represent state employees of the state-run mental health facility under Model Rules of Professional Conduct (MRPC) 4.2, Communication with Person Represented by Counsel, thereby allowing the OAG to deny the PDO ex parte access to facility employees with regard to the PDO’s representation of clients who have been civilly committed to the facility for the purpose of representing these clients as to their eligibility for release?
2. If facility staff is not represented by the OAG under MRPC 4.2, does the OAG violate MRPC 3.4, Fairness to Opposing Party and Counsel, by barring the PDO access to facility staff?