Can a city prosecutor forbid police or public safety officers from talking to defense lawyers about pending cases?

Plain-English summary

A city solicitor represented the city and its Department of Public Safety in prosecutions in Municipal Court, usually in jury trials but on occasion assisting public safety officers in bench trials. The solicitor was contemplating forbidding the officers from discussing trials with criminal defense attorneys without first contacting the solicitor or outside the solicitor's presence, and asked, across four variations, whether the solicitor could bar such contact in particular cases, in cases the solicitor would prosecute, in bench-trial matters, and in other cases.

The committee concluded that in criminal matters the solicitor represents the city and the people, not the public safety officers as such. Under Rules 3.4(a) and (f), a lawyer normally may advise only a client, or a relative, agent, or employee of a client, not to cooperate by voluntarily providing relevant information to another party. Because the officers were not the solicitor's clients in that sense, the solicitor could not instruct them to withhold cooperation. The committee added that the criminal context implicates the constitutional and procedural rights of persons being prosecuted, and that fair competition in the adversary system is secured by prohibitions against concealing evidence, improperly influencing witnesses, and obstructing discovery, which would include not allowing solicitors to bar contact with the officers (citing the Comment to Rule 3.4(f)).

The committee further concluded that Rule 4.2 does not prohibit communication with a party, or an employee or agent of a party, about matters outside the representation of the entity, such as communication with a public safety officer about a matter prosecuted in Municipal Court. Therefore, in answer to all four questions, the solicitor could not prohibit defense attorneys from contacting and discussing jury trials, bench-trial matters, and other cases with public safety officers, or vice versa.

Currency note

This opinion was issued in 1999, before the South Carolina Bar's adoption of the 2005 revisions to the Rules of Professional Conduct. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Can a prosecutor tell police officers not to talk to defense attorneys?

A: The committee concluded no: because the solicitor represents the city and the people rather than the officers, Rules 3.4(a) and (f) did not authorize instructing the officers to withhold voluntary cooperation from the other side.

Q: Does Rule 4.2 (no contact with represented persons) bar a defense lawyer from talking to the officers?

A: The committee concluded no: Rule 4.2 does not prohibit communication with a party's employee or agent about matters outside the entity's representation, such as a public safety officer in a Municipal Court prosecution.

Q: Whom does a city solicitor represent in a criminal prosecution?

A: The committee stated that in such criminal matters the solicitor represents the city and the people, not the public safety officers per se.

Background and rules framework

The opinion interpreted South Carolina RPC 3.4(a) and 3.4(f) (fairness to opposing party and counsel; a lawyer may request only a client or a client's relative, employee, or agent to refrain from voluntarily giving information to another party) and RPC 4.2 (communication with a person represented by counsel), corresponding to the like-numbered Model Rules. The committee identified the solicitor's client as the city and the people, not the individual officers.

Citations and references

Rules of Professional Conduct:

• South Carolina RPC 3.4(a), 3.4(f) / Model Rule 3.4: fairness to opposing party and counsel; limits on requesting witnesses to withhold cooperation.
• South Carolina RPC 4.2 / Model Rule 4.2: communication with persons represented by counsel.

Other opinions cited:

• S.C. Bar Ethics Advisory Opinion 94-07 (April 1994).
• Standard 3-3.1(d), ABA Standards Relating to the Administration of Criminal Justice.

See also

• No sibling opinions yet indexed.

Source

• Landing page: https://www.scbar.org/for-lawyers/quicklinks/legal-resources/ethics-advisory-opinions/ethics-advisory-opinion-99-14/

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

UPON THE REQUEST OF A MEMBER OF THE SOUTH CAROLINA BAR, THE ETHICS ADVISORY COMMITTEE HAS RENDERED THIS OPINION ON THE ETHICAL PROPRIETY OF THE INQUIRER’S CONTEMPLATED CONDUCT. THIS COMMITTEE HAS NO DISCIPLINARY AUTHORITY. LAWYER DISCIPLINE IS ADMINISTERED SOLELY BY THE SOUTH CAROLINA SUPREME COURT THROUGH ITS COMMISSION ON LAWYER CONDUCT.

Ethics Advisory Opinion 99-14

Facts
City Solicitor represents the City and Department of Public Safety in prosecutions in Municipal Court. Typically, the prosecutor is involved in jury trials in Municipal Court; however, on occasion, the prosecutor assists Public Safety officers in bench trials as requested. City Solicitor is contemplating forbidding the Public Safety officers from discussing jury trials and other trials with criminal defense attorneys without first contacting City Solicitor or outside the presence of City Solicitor.

Question
There are four questions: Can City Solicitor 1) prohibit Public Safety officers from having contact with criminal defense attorneys in reference to a particular case; 2) prohibit criminal defense attorneys from contacting Public Safety officers to question them about cases the City Solicitor will prosecute; 3) prohibit criminal defense attorneys from contacting Public Safety officers in matters which will be tried as a bench trial in court and be tried by City Solicitor; and 4) prohibit criminal defense attorneys from contacting public safety officers, or vice versa, in other cases without first contacting City Solicitor?

Summary
In criminal matters, City Solicitor represents the city and the people, not the public safety officers per se. A lawyer normally may advise only a client or a relative, agent, or employee of a client not to cooperate by voluntarily providing relevant information to another party. Rules 3.4(a) and (f) of the Rules of Professional Conduct. Since this is a criminal matter, consideration must also be given to the constitutional and procedural rights of persons being prosecuted in Municipal Court. Further, Rule 4.2 of the Rules of Professional Conduct does not allow City Solicitor to prohibit criminal defense attorneys from contacting and discussing jury trials, bench trial matters and other cases with public safety officers, or vice versa.

Opinion
Our criminal justice system is an adversary system that must balance the competitive positions of the contending parties. In such criminal matters, City Solicitor is representing the city and the people, not the public safety officers, per se. A lawyer normally may advise only a client or a relative, agent, or employee of a client not to cooperate by voluntarily providing relevant information to another party. Rules 3.4(a) and (f) of the Rules of Professional Conduct. Since this is a criminal matter, consideration must also be given to the constitutional and procedural rights of persons being prosecuted in Municipal Court. Fair competition in the criminal adversary system is secured by prohibitions against the destruction or concealment of evidence, improperly influencing witnesses and obstructive tactics in the discovery procedure, which would include not allowing city solicitors to prohibit contact with public safety officers. (See Comment, Rule 3.4(f).)

Further, Rule 4.2 of the Rules of Professional Conduct does not prohibit communication with a party, or an employee or agent of a party, concerning matters outside the representation of the entity, such as communication with a public safety officer in a matter being prosecuted in Municipal Court. Therefore, in answer to all four questions, City Solicitor cannot prohibit criminal defense attorneys from contacting and discussing jury trials, bench trial matters and other cases with Public Safety officers, or vice versa.

See also, S.C. Bar Ethics Adv. Op. #94-07 (April 1994); and Standard 3-3.1(d), ABA Standards Relating to the Administration of Criminal Justice.