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STATE OF MICHIGAN
COURT OF APPEALS


PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v ZAKIR HAKIM, Defendant-Appellant.

UNPUBLISHED December 16, 1997

No. 196269 Wayne Juvenile Court LC No. 93-310379

Before: O'Connell, P.J., and White and Bandstra, JJ. PER CURIAM. Following an adjudication hearing, defendant was found responsible for breaking and entering a dwelling with intent to commit a felony, MCL 750.110a(3); MSA 28.305(a)(3). He was placed on probation. Defendant now appeals as of right to this Court. We affirm. On July 5, 1995, defendant and another minor, Mohammed Elabed, illegally entered the house of another. Defendant gained entry to the house when Elabed climbed through an open window and let defendant in through the front door. When they noticed police officers approaching the house, defendant and Elabed, who had taken some credit cards from the house, ran out the back door and climbed over a fence. They were subsequently apprehended by a police officer, and defendant was charged with the aforementioned crimes. Defendant's first argument on appeal is that the prosecutor committed misconduct by communicating with Elabed outside the presence of the witness' counsel. The relevant rule of professional conduct provides: In representing a client, a lawyer shall not communicate about the subject of the representation with a party whom the lawyer knows to be represented in the matter by another lawyer, unless the lawyer has the consent of the other lawyer or is authorized by law to do so. [MRPC 4.2.] As far as this Court can discern, the "communication" to which defendant refers concerns the prosecutor's questions to the witness at defendant's adjudication hearing.

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The comment section accompanying MRPC 4.2 states that the prohibition is not limited to communication with parties to a case, but to any person who is represented by counsel in the matter. Id. Thus, assuming that the witness was still represented by his counsel at the time of defendant's hearing, the witness would be part of the class protected by the rule. However, the comment section does not specify the type of situation the committee had in mind when it provided an exception for communications with an adverse party when "authorized by law to do so." Thus, the question for our resolution is whether the prosecutor's questioning of the witness at defendant's adjudication hearing was a type of communication prohibited by the rule or whether the communication was authorized by law. Our review of the concerns and goals underlying the rules of professional conduct lead us to conclude that the communication is authorized. As the Michigan Supreme Court has noted, MRPC 4.2 aims to prevent overreaching by attorneys and to ensure the proper functioning of the legal system. People v Green, 405 Mich 273, 291; 274 NW2d 448 (1979). Similarly, in People v Patterson, 39 Mich App 467, 475; 198 NW2d 175 (1971), a panel of this Court quoted the committee's statement that "it is incumbent upon a lawyer not to attempt clandestinely to practice coercion on a party who is represented by counsel." While these concerns and goals are undoubtedly important, they are irrelevant in the present case because the prosecutor questioned the witness in open court. The prosecutor's actions were not "clandestine" and were monitored by the appropriate authorities. Therefore, we hold that the prosecutor's questioning was communication authorized by law and was not a violation of MRPC 4.2. Defendant next argues that that the lower court inadequately informed Elabed about the privilege against self-incrimination before the accomplice testified against defendant at defendant's adjudication hearing. Const 1963, art 1,

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