Let's say you have a criminal defense lawyer, hired by a father accused of molesting his child, who then instructs the parent to bring in the child (oh, say, nine years old) to be interviewed by the lawyer.

Lawyer then records the interview and gets child to say it might have all been a dream.

Keep in mind, investigation has not been completed. Police haven't even taken child to advocacy center yet for an interview.

Two questions:

First, is it ethical for the criminal defense lawyer to conduct the interview?

Second, does the lawyer make himself a material witness and create an inherent conflict of interest?

Is the lawyer the first person over the age of 18 besides the culprit (I like that term.) to speak to the child? If he is, I think he makes himself a material witness.

Does the video reveal any sort of manipulation or leading of the child that would be objectionable had the same questioning technique been used by a CPS interviewer?

Those two answers would directly affect my answer. I think a lawyer should be able to interview witnesses. I think a defense lawyer should be able to speak with the child, same as when the prosecutor speaks to the child.

HOWEVER if the lawyer's interviewing technique is something a defense lawyer would scream about had a CPS worker used the same technique, I think you can consider some sort of tampering charge against the lawyer. How many times have you heard defense lawyers scream and rant about child interviewers that suggest to the child the answer that they want to hear? How many times have you seen a defense attorney claim that the interviewer put the idea in the child's head?

Well, is your defense attorney in this example doing the same stupid thing?

The child's statement to the lawyer could qualify as an outcry, as it is the first time there is a detailed interview.

The lawyer does violate many of the protocols listed by forensic interviewers and could be subjected to extensive challenge through cross-examination.

In addition, the child, at the conclusion of the interview says, I'll take that ice cream now.

The recording is difficult, though, as many of the child's answers are inaudible.

Subpoena the lawyer to Grand Jury as a material witness?

Did that. And the lawyer filed a motion to quash the subpoena, alleging various things, including interference with attorney client relationship and privilege. Should it be successful?

I think the lawyer/client privilege is waived concerning any communication the lawyer had with the child. The lawyer/client relationship is between the lawyer and the father, not the lawyer and the child.

So, does it offend any rule of ethics?

Lawyers have duties to non-clients they interview. This child is not the client the molesting parent is. These sections seem to apply.

Rule 4.03 Dealing With Unrepresented Person

In dealing on behalf of a client with a person who is not represented by counsel, a lawyer shall not state or imply that the lawyer is disinterested. When the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyers role in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding.

Comment:
An unrepresented person, particularly one not experienced in dealing with legal matters, might assume that a lawyer is disinterested in loyalties or is a disinterested authority on the law even when the lawyer represents a client. During the course of a lawyers representation of a client, the lawyer should not give advice to an unrepresented person other than the advice to obtain counsel. With regard to the special responsibilities of a prosecutor, see Rule 3.09.

Rule 4.04 Respect for Rights of Third Persons

.(a) In representing a client, a lawyer shall not use means that have no substantialpurpose other than to embarrass, delay, or burden a third person, or use methods of obtaining evidence that violate the legal rights of such a person.

Comment:
1. 1. Although in most cases a lawyers responsibility to the interest of his client isparamount to the interest of other persons, a lawyer should avoid the infliction of needless harm.

Of course these rules were written as much to protect lawyers as to protect innocent molested kids.

John, the unfortuate answer is that any remotely ethical person should shutter at the blatant "wrongness" of this situation, yet the conduct may be entirely appropriate for a lawyer.

Maybe that is why we take so much heat.

Does he make himself unable to appear as a lawyer in the case if he does such an interview? In other words, do other ethical rules then require him to step out of the case?

When I did criminal defense for 14 years, the big lesson learned was that the attorney should NEVER interview a witness by herself/himself. IF the witness should testify in a manner inconsistent with the statement previously given to the defense, the only way the witness could be properly impeached is by the attorney testifying. Since the attorney can not testify, the witness can not be impeached.

Sorry, I don't think this is unethical. It is more unethical to NOT interview a potential witness since it abrogates the defense attorney's responsibilities to his client. In too many cases, once the report reaches the D.A.'s desk, the witness hears the "you don't have to talk to anyone" line from the D.A. but interprets it to mean "DON'T talk to the defense" and then it's too late for the attorney to do the interviews.

HOWEVER, that said, this attorney has placed himself in a bad situation. IF the child testifies unless someone else was present who will impeach the child, the attorney is up a creek without the proverbial paddle and will have to accept the answers given at trial.

Your option now is to either lay behind the log and let the attorney take the child's testimony on the stand with no way to impeach OR move to disqualify in advance.

As far as being the outcry witness, as far as I can tell from the previous posts, the child did not disclose abuse but, instead, denied the abuse by saying he could have dreamed it. Therefore, not outcry witness. Furthermore, you really don't want to use a defense attorney as an outcry witness.

Finally, TCDLA ethics portion of seminars often dealt with the defense attorney's requirement to report child abuse just like a teacher or non-lawyer. When the provision for mandatory reporting was written there was no exception for attorneys. If the child DID reveal additional abuses, the attorney is bound to report it (which puts him in another predicament).

Rule 3.08 of the Rules of Professional Conduct bars lawyers from accepting or continuing employment as an advocate before a tribunal in most situations "if the lawyer knows or believes that the lawyer is or may be a witness necessary to establish an essential fact on behalf of the lawyer's client...." Since he is a necessary witness for at least the authentication of the tape and interview, and criminal proceedings are imminent, I think he should not continue to represent the client.

The State passed legislation several years ago to encourage the development of children's advocacy centers (CAC). CAC is designed to provide a nongovernmental, safe place for a child to report abuse. CAC is a nonprofit that has its own protocols that emphasize the need to do an age-appropriate interview that is recorded. By using a neutral, trained interviewer and recording it, the likelihood that a child must submit to repeated, harmlful interviews is reduced.

Why shouldn't the defense attorney respect that approach? Aren't there special considerations, perhaps not yet recognized by the disciplinary rules?

If a prosecutor were the original interviewer, wouldn't the defense attorney use that to impeach the interview process. Don't they bring in experts to break down such interviews as leading, etc.?

If the interview was recorded, it seems to me he can avoid appearing as a witness simply by reminding the child witness of the time she spoke to him in his office and showing her the tape, which she will no doubt identify as an accurate recording of her conversation with him (once he has asked he the appropriate leading questions.)

I would also agree that the State would have a difficult time arguing that the lawyer should be prevented from doing what in every other case he would see as his obligation, i.e. interviewing the witnesses in the case.

I don't think that necessarily prevents him from risking a tampering charge if he intentionally attempts to alter the child's testimony. Perhaps we have evidence that the lawyer has represented such clients before, perhaps even presented evidence in prior cases about how such questions can corrupt a child's testimony. If he now engages in the same conduct which he previously claimed made a child's testimony unusable, then hasn't he violated the tampering law?