Prosecutors May Advise Police to Communicate with Represented Defendant

Effective November 1, 2010, the Supreme Court of Virginia approved the Virginia State Bar’s Rule 4.2 Task Force’s proposed amendment to Comment [5] of Rule 4.2 of the Rules of Professional Conduct to address the situation in which a defendant who is in custody, formally charged, and represented by counsel waives his rights under Miranda v. Arizona and wants to give a statement to a law enforcement officer without his counsel present.


The question addressed by the task force was: “If the law enforcement officer seeks legal advice from a commonwealth’s attorney regarding whether the officer may obtain a statement from the defendant under these circumstances, may the commonwealth’s attorney advise the police officer without violating Rule 4.2?

Rule 4.2 had previously prohibited a lawyer from communicating with a person the lawyer knew to be represented by counsel unless the counsel for the represented person consented or the communication was authorized by law.

Rule 8.4 (a) states that a lawyer cannot violate a professional rule through the agency or actions of another. A reading of the rule led to the conclusion that the commonwealth’s attorney could not ethically advise law enforcement officers to proceed with the custodial interview without notice to or consent from the accused’s lawyer.

The task force determined that the defendant’s waiver of his right to have his lawyer present when the accused desires to talk to a law enforcement officer presents a constitutional legal issue on which the commonwealth’s attorney should be permitted to give advice without fear of violating the cited rules. The amendment to Rule 4.2, Comment [5] clarifies that the commonwealth’s attorney can advise the law enforcement officer regarding the legality of an interrogation or the legality of other investigative conduct. The amendment to Comment [5] does not, however, authorize the commonwealth’s attorney to script or mastermind the police’s interrogation of the defendant.

California Bar Goes After Prosecutors for Misconduct

The California state bar discipline process, led by recently-appointed Chief Trial Counsel Jim Towery, is investigating 130 prosecutors who had been identified in a report by the Innocence Project and Santa Clara University law professors on instances of wrongful conviction.  It is not known how far these cases will go back, but this is a rather significant development in the field of lawyer regulation.

D'ya Think?

Do you think prosecutors have an ethical duty to turn over evidence that tends to show that the person they convicted is innocent? You would think so but don't try to find that in the ethics rules that govern lawyers who are public prosecutors. It's not there. Do you think the rules of conduct governing prosecutors should require them to turn over evidence of innocence after convicting a person who likely did not commit the crime?

At its Midyear Meeting this month the American Bar Association's House of Delegates voted in favor of a proposal to amend Rule 3.8 of the ABA Model Rules of Professional Conduct to identify prosecutors’ obligations when they know of new evidence establishing a reasonable likelihood that a convicted defendant did not commit the offense of which he was convicted.

This doesn't mean a whole lot, though, unless each state formally revises their rules on the subject and there is no assurance that will occur. The ABA Model Rules are precisely that--model rules--which are not binding on any lawyer practicing in this country. Each state in the U.S. has its own ethics rules that are binding on the lawyers practicing in that state.

Prosecutors have an ethical obligation to do more than just convict. They are to see that justice is done. Prosecutors do not have a client they are beholden but they have a constituency to whom they are responsible. That constituency is the voters that put the prosecutor in office. Surely the public that elected a district attorney does not want persons who are wrongfully convicted to stay in prison. What if was you or a family member incarcerated in prison and the person holding the key to freedom is the prosecutor?

Unfortunately, most prosecutors do not recognize or accept their responsiblity to reveal evidence of innocence post-conviction and will likely oppose measures like the amendment recently adopted by the ABA.