Proposed Ethics Opinion about Interviewing Child Witnesses

Last month, the State Bar issued a proposed ethics opinion regarding contact between prosecutors and defense lawyers, on the one hand, and children who are prosecuting witnesses in criminal cases involving allegations of physical or sexual abuse, on the other.  The proposed opinion, which is available here, concludes that a lawyer "may not interview a child who is the prosecuting witness in a criminal case alleging physical or sexual abuse if the child is younger than . . . 14 . . . unless the lawyer has the consent or authorization of a non-accused parent or guardian or a court order." The opinion focuses on unrepresented children; in keeping with general principles, represented children are treated differently. I have some concerns about the proposed opinion, which I'll mention below, but I wanted to start by setting out the reasoning in the opinion. The opinion addresses a recurrent and important topic. As the proposed opinion puts it, child abuse cases pose "a difficult dilemma for a lawyer who has a duty to prepare competently by investigating each case and interviewing key witnesses, but who does not wish to cause further harm to a child who may have been traumatized by physical or sexual abuse." In resolving this dilemma, "the Ethics Committee received input from mental health professionals and child advocates," who stated that repeated interviews may be traumatic for a child; that interviews are best conducted by professionals; and that it is generally helpful for a family member to be present during [...]