Opinion 801

[Formerly published as Published Informal Opinion 86-2. All Informal Opinions are consolidated in this database.]

An inquiry has been submitted to the Rules of Professional Conduct Committee concerning the ethical propriety of a prosecuting attorney requesting a law enforcement officer to contact and interview a defendant, who is incarcerated pending trial and is represented by counsel, concerning the defendant`s knowledge of the criminal activities of third persons. In the situations at issue, the purpose of the interview with the incarcerated defendant is not to obtain information concerning the defendant`s criminal activity but to obtain information concerning that defendant`s knowledge of the criminal activities of a third person. A frequent situation involves asking the incarcerated defendant whether a cellmate has made admissions concerning the cellmate`s involvement in crimes totally separate and independent from the crime the defendant is charged with. In the situation presented, the prosecuting attorney knows the defendant is represented by counsel in connection with the pending case but does not contact counsel to seek permission for the interview prior to the interview occurring.

The inquiring attorney contends that a reasonable defendant would believe that cooperation with the prosecuting attorney or the law enforcement officer in providing information concerning the third person`s criminal conduct would benefit the defendant because a defendant would believe that he or she would receive some future leniency or consideration because of cooperation.

RPC 4.2 provides:
"In representing a client, a lawyer shall not communicate about the subject of the representation with a party the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized by law to do so."

In addition, RPC 8.4(a) provides that it is professional misconduct for a lawyer to violate the Rules of Professional Conduct either personally or "through the acts of another."

The Committee is of the opinion that contacts as described above would not violate the Rules of Professional Conduct unless the conduct of the prosecuting attorney personally, or a law enforcement officer acting at the direction of the prosecuting attorney, was such that the discussions with the prosecuting attorney or those acting on behalf of the prosecuting attorney would affect the defendant`s case. If the prosecuting attorney or a law enforcement officer acting on behalf of the prosecuting attorney were to lead a defendant to the belief that future leniency or consideration in connection with the pending case could result, then a violation of RPC 4.2 would occur because the future considerations relate to the pending case which is the "subject of the representation." In such situations, RPC 4.2 requires the consent of the defendant`s lawyer before the communication occurs.

Mere questioning concerning an unrelated matter such as a jail crime does not violate RPC 4.2. However, the Committee recognizes that a significant number of defendants in custody might expect that their cooperation might result in leniency in their own case. To avoid uncertainty, the better practice would be for the interviewer expressly to advise the defendant that the discussion with regard to the third person has no relation to the defendant`s pending case and that whether the defendant answers or not, and regardless of the answers given, such will not be given any consideration whatsoever in the handling or outcome of his or her case.

The Committee recognizes that law enforcement officers act independently and that the Rules of Professional Conduct apply only to the conduct of lawyers. A prosecuting attorney, however, is responsible for the actions of law enforcement officers acting at the direction or with the permission of the prosecuting attorney. RPC 8.4(a).

Dissenting Opinion
I would make the following changes in the next to last paragraph of the Opinion:
Mere questioning concerning an unrelated matter may or may not give rise to a reasonable belief that the discussion will benefit the defendant`s case depending on the circumstances. However, the Committee recognizes that a significant number of defendants in custody might expect that the cooperation might result in leniency in their own case. The interviewer should expressly advise the defendant that the discussion with regard to the third person has no relation to the defendant`s pending case and that whether the defendant answers or not and regardless of the answers given, such will not be given any consideration whatsoever in the handling or outcome of his or her case.
The majority acknowledges that a "significant number of defendants in custody might expect that their cooperation might result in leniency" in their pending case. If that is true, and I agree that it is, a defendant having such expectations needs the assistance of his or her lawyer before and in connection with any such discussions.
I am concerned that the majority opinion may be read by some as making it optional or discretionary for the interviewer to give the cautionary language which the majority identifies as the "better practice." I believe that the prosecuting attorney should have the right to interview regarding unrelated matters but faced with the finding that "a significant number of defendants" may construe the situation as one which potentially impacts their pending case, then, and in those circumstances, I believe that the prosecuting attorney should refrain from the discussion unless it is first made unmistakably clear that whether the defendant participates in the discussion or not, or answers or not, and regardless of the answers given, such will not be given any consideration whatsoever in the handling or outcome of his or her case. That would lay the cards on the table and would tend to correct the misunderstanding which everyone agrees will affect "a significant number of defendants in custody."