To: Debra Uliana, Chief Deputy District Attorney
From: Applicant
Date: February 22, 2022
Re: Mark Price’s compliance with Rules 4.2 and 5.2
Conclusions
Price’s conduct on both dates presents Rule 4.2 violations, with the November 18 violation particularly clear under State v. Nelson. The October 3 contact preceded indictment and requires the more contextual inquiry Nelson identifies, but counsel’s express refusal to consent and the court’s constitutional ruling substantially defeat reliance on authorized investigative activity. Rule 5.2 offers, at most, a conditional October defense if Price proves an actual supervisory resolution of the arguable ethical question. The interview conflict and Sayed’s distinction between admissibility and ethics leave that defense unestablished. It cannot excuse the clearly prohibited post-indictment November contact.
Governing ethical duties
Rule 4.2(a) prohibits direct or indirect communication about the subject of representation with a person the lawyer knows is represented in that matter, unless the other lawyer consents. Comment [1] expressly applies the rule even when the represented person initiates or consents to communication. Comment [2] covers use of an intermediary, including an investigator. The lawyer cannot avoid the rule simply by assigning contact to police.
Rule 4.2(c)(2) permits communications authorized by law or court order. Comment [3] recognizes legitimate government investigative activities, but only within constitutional, statutory, rule, and case-law limits. Nelson rejects a general prosecutorial exemption and holds that a prosecutor cannot use an investigative label to circumvent the rule after indictment. It also rejects a speaking-only interpretation: listening can implicate the rule because it protects a represented person from his own uninformed initiatives as well as the opposing lawyer’s questioning.
Rule 5.2(a) requires a subordinate to comply despite another lawyer’s direction. Subdivision (b) protects acting in accordance with a supervisor’s reasonable resolution of an arguable professional-duty question. If only one answer is reasonable, both lawyers remain responsible. A subordinate therefore needs an actual supervisory resolution, a genuinely arguable question, an objectively reasonable answer, and conduct within that answer. General advice about whether a statement is admissible is not necessarily a resolution of Rule 4.2.
1. October 3: indirect pre-indictment contact
Representation, knowledge, and subject matter are established
Price appeared when Gardner was appointed on August 24, so he knew Howe was represented in the Wilson matter. On September 6, Gardner expressly declined consent to Price’s proposed interview unless complete immunity was offered; Price was unwilling to give it. That conditional response is not effective consent on the facts.
Howe then called Detective Daichi seeking to discuss the Wilson murder. After consultation, Price instructed her to listen without asking questions and report back. On October 3 she did exactly that. The case-related conversation therefore was not an independent police event unknown to Price: he prospectively directed the approach and received its fruits through his investigative intermediary. Under comment [2], he cannot rely merely on his absence from the call.
Howe initiated the call from home and volunteered statements, facts favoring a legitimate investigative explanation and potentially affecting constitutional or evidentiary analysis. They do not themselves override comment [1] or create counsel’s consent. In particular, limiting Daichi to listening does not categorically remove the contact from Rule 4.2 in light of Nelson’s stated protective purpose.
The authorized-by-law exception requires a contextual inquiry
The October 3 call preceded the October 19 indictment. Nelson says a prosecutor may or may not be prohibited from pre-indictment contacts depending on circumstances, specifically identifying the defendant’s willingness as favoring contact and counsel’s expressed unwillingness as weighing against it. Those factors point in opposite directions here. Unlike a blanket post-indictment prohibition, that framework makes the initial ethical question at least arguable.
The fact that Howe already had been arraigned and had counsel is important. Pre-indictment does not mean no criminal proceedings or no protected relationship existed. Price knew that appointed counsel refused precisely the proposed kind of case communication. Deliberately directing receipt of statements despite that refusal weighs heavily toward prohibited interference.
The task memorandum also states that the Superior Court found Price’s dealings on both dates violated Howe’s Fifth and Sixth Amendment rights. We should treat that determination as given rather than relitigate whether unsolicited statements ordinarily satisfy an admissibility rule. Because the investigative exception is limited by constitutional law, that ruling is a powerful independent reason these particular contacts cannot be defended as authorized-by-law investigation. No separate statute or affirmative court order authorized the October call. The better merits conclusion is a Rule 4.2 violation, while recognizing why a prospective pre-indictment analysis could have presented an arguable issue before that ruling.
Rule 5.2 depends on which account of the consultation is established
Price recalls Sayed advising not only that volunteered statements likely would be admissible but also that Rule 4.2 allowed investigative contact. Sayed agrees with the admissibility advice and listen-only instructions, but specifically denies discussing the no-contact rule. She explains that a nontrivial professional-conduct issue had to go to Compliance Officer Lamar Lewis; she did not make that referral because Price never raised it.
If Sayed’s account is correct, Price has not shown a supervisory resolution of the professional-duty question at all. He may have followed an investigative instruction, but Rule 5.2 does not automatically convert advice about suppressibility into permission under an independent ethics rule.
If Price’s account is credited, the court still must assess the content and reasonableness of the asserted resolution. A careful pre-indictment resolution based on Howe’s unsolicited initiative and listening-only contact has an argument under Nelson’s contextual language. But a categorical proposition that prosecutors may contact represented defendants whenever investigating ignores counsel’s refusal and the limits in Rule 4.2(c). That broader proposition is not automatically a reasonable resolution merely because a supervisor said it. Price also knew the actual conditions and must show that the advice addressed them.
The court’s later finding of constitutional misconduct does not by itself answer every question about the objective reasonableness of a supervisor’s earlier resolution of an arguable ethical issue. Rule 5.2 can protect a subordinate who actually follows a reasonable alternative even if another answer ultimately prevails. Here, however, the factual dispute and the broad wording Price recalls prevent us from treating that protection as established. Follow-up should determine exactly what was discussed, what facts Sayed knew, and whether any contemporaneous record or referral supports either account.
2. November 18: direct post-indictment contact
By November 18, Howe had been indicted for approximately a month and was in custody. Price knowingly accepted a collect call on his private line, invited Daichi to listen on an extension, and listened and took notes for about twenty minutes while Howe discussed the murder. Representation, knowledge, and subject matter again are indisputable, and there was no intervening consent from Gardner.
Nelson expressly prohibits nonconsensual prosecutorial communication with a represented defendant after indictment in all the circumstances addressed by its rule. A direct call initiated by Howe does not create an exception. Telling him he need not speak and that his lawyer would be unhappy did not obtain Gardner’s consent or restore counsel as the protected intermediary. Listening and note-taking are not an escape from the rule. The exception for lawful investigative activity cannot override Nelson’s specific post-indictment holding.
Price also cannot treat the judge’s October refusal to order Daichi not to speak as an affirmative authorization for this November contact. Declining a requested prohibition is not the same as a court order approving the later different communication, and the indictment materially changed the applicable analysis. The court’s constitutional determination provides an additional obstacle to an authorized-by-law defense.
Supervisor reliance does not excuse the November violation
Price vaguely recalls another consultation with advice similar to the earlier discussion. Sayed denies any second discussion before dismissal and says she would have referred so unusual a direct defendant-to-prosecutor call to Lewis. That conflict again requires factual resolution rather than automatic acceptance of either witness.
Even accepting Price’s version, Nelson leaves no reasonably arguable professional-duty alternative permitting this post-indictment contact without counsel’s consent. Advice broadly allowing investigative contacts would be contrary to a controlling decision. A reasonable pre-indictment instruction also would not automatically extend beyond indictment to a direct twenty-minute call with the prosecutor. Rule 5.2(a), rather than its limited safe harbor, governs. Price should have ended the case discussion and sought the required consent or proper guidance.
The judge’s decision not to refer the matter to the State Bar because it was a first offense is a decision about referral, not a determination that the conduct complied with Rule 4.2. Accordingly, November presents a clear violation without an available supervisor-reliance defense on the supplied law; October presents a strong violation with a narrower, fact-dependent Rule 5.2 issue that remains unproven.