Legal Ethics Opinion #1511

Communication With Adverse Party: Attorney General's Direct
communication With Defendant as to Collection of Costs Assessed
Against Him

You have presented a hypothetical situation in which Lawyer X
represents a client on an appeal in a criminal case from the
trial court (Circuit Court) to the Virginia Court of Appeals. 
The client ultimately loses in the Virginia Court of Appeals, and
the trial court finding is affirmed.  The trial record is
returned to the appropriate Circuit Court.  Consequently, the
Court of Appeals assesses certain costs against the client.  The
Attorney General subsequently communicates in writing with Lawyer
X requesting that the costs be paid.  Lawyer X suggests to the
Attorney General that the Attorney General correspond directly
with the client.  The Attorney General responds that
communication directly with the client from the Attorney General
is barred by DR 7-103(A).  

You have asked the committee to opine whether, under the facts of
the inquiry, it is permissible for the Attorney General to
correspond directly with the client with reference to the
collection of costs assessed against the client by the Virginia
Court of Appeals after the appeal has concluded and the record
has been returned to the trial court.

The appropriate and controlling Disciplinary Rule related to your
inquiry is DR 7-103(A)(1), which states that during the course of
his representation of a client, a lawyer shall not communicate or
cause another to communicate on the subject of the representation
with a party he knows to be represented by a lawyer in that
matter unless he has the prior consent of the lawyer representing
such other party or is authorized by law to do so. 

The committee has previously opined that when an individual had
been a party to a concurrent or prior action to the action in
question, and has or had representation at that time, it would be
improper for an attorney to communicate with that individual on
the subject of that litigation without either the consent of the
prior attorney or authorization by law.  See LEOs #1389, #1409.

The committee recognizes that the facts you present indicate that
the attorney who had earlier represented the defendant
subsequently [orally] consented to the Attorney General's
communication with the client.  The committee believes it would
be better practice for the attorney to provide written notice of
this consent to both the former client and the Attorney General. 
Therefore, the committee opines that it is not improper for the
Attorney General to contact Lawyer X's former client directly
with reference to the collection costs assessed.

Committee Opinion
April 12, 1993