Contacts with Represented Persons

• Pages: 109-121

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CHAPTER 6

CONTACTS WITH REPRESENTED PERSONS

Whileinvestigations are still in their covert stage, or just

transitioning to becoming overt (for example, during the execution of

search warrants), antitrust prosecutors and agents acting on their behalf

frequently contact potential witnesses withoutfirst contacting counsel.

In some circumstances, doing so may implicate, and could potentially

run afoul of, several ethical rules. This Chapter explains the statutes and

ethical provisions fundamental to understanding this area of law and

analyzes the controversy that has developed concerning contacts with

represented persons. Rather than attempting to canvas the individual

states’ ethics rules, this Chapter provides a broad overview of the ethical

issues that may arise in connection with communications with

represented persons in an antitrust investigation.

A.Contacts in the Context of Antitrust Investigations

It is not uncommon in antitrust grand jury investigations for the

government to attempt to interview individuals on an impromptu basis.

In manyinvestigations, an agent and/or a prosecutor will arrive at a

person’s residence or place of business without any advance warning and

seek information relevant to a pending criminal investigation. If a

corporation is under investigation, the prosecutor will oftenattempt to

interview current or former corporate employees who may have

information concerning the conduct in question. In other cases, either a

cooperating witness wearing a hidden recording device or an undercover

Federal Bureau of Investigation (FBI) agent may seek to elicit

incriminating statements from a suspect.1

1. SeeUnited States v. Johnson, 68 F.3d 899, 901 (5th Cir. 1995)

(describing how Division prosecutors recorded an informant speaking to

a subject of its investigation); Obron Atlantic Corp. v. Barr, 990 F.2d

861, 865 (6th Cir. 1993) (affirming district court’s order denying a

motion to enjoin Division prosecutors fromusing consensually recorded

telephone conversations); United States v. Ryans, 903 F.2d 731 (10th Cir.

1990) (holding permissible Division prosecutors’ use of an informant to