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CHAPTER 6
CONTACTS WITH REPRESENTED PERSONS
While investigations 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 without first 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 many investigations, 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 often attempt 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
(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 from using consensually recorded
telephone conversations); United States v. Ryans, 903 F.2d 731 (10th Cir.
1990) (holding permissible Division prosecutors’ use of an informant to
