What can a criminal defense lawyer tell a client about breaking the law, and what can the lawyer say to a victim or witness?

Plain-English summary

A defense attorney asked about ethical responsibilities in responding to questions from clients and from witnesses. As to the client, the committee was of the opinion that the lawyer has a duty under RPC 1.1 and 1.4 to advise the client of the law on issues relevant to the client's case. If the lawyer believes the client is contemplating acts that violate the law, the committee said it is the lawyer's duty to advise the client of the legal consequences of those acts and to advise the client against committing them.

As to a victim/witness, the committee said the following rules apply. If the lawyer knows the victim/witness is represented by counsel, RPC 4.2 prohibits communicating about the subject matter without the consent of that person's attorney; even with consent, under RPC 1.7 and 4.3 the lawyer should decline questions that call for legal advice. RPC 4.3 requires the lawyer to make reasonable efforts to correct the victim/witness's misunderstanding about the lawyer's role. When the victim/witness is not represented and asks questions calling for legal advice, the lawyer should tell the person to seek another attorney, because RPC 1.7 prohibits the lawyer from giving that legal advice. Finally, the committee said that whether it is proper to tell the defendant there is no need to call the police at an officer's request depends on the defendant's legal duties, a question of law it is prohibited from answering; if there is an affirmative legal duty to comply, the client should be advised accordingly.

Currency note

This opinion was issued in 1995, before the Washington State Bar Association's adoption of the 2006 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 Treat this page as historical context, not current guidance.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. RPC 1.1, 1.4, 1.7, 4.2, and 4.3 correspond to the same-numbered ABA Model Rules on competence, communication, conflicts of interest, communication with represented persons, and dealing with unrepresented persons.

Common questions

Q: Can a defense lawyer advise a client who is thinking about breaking the law?

A: The committee said the lawyer must advise the client of the legal consequences of contemplated illegal acts and advise the client against committing them, while also advising the client of the law relevant to the case under RPC 1.1 and 1.4.

Q: Can the lawyer talk to a victim or witness who has a lawyer?

A: The committee said RPC 4.2 prohibits communicating about the subject matter with a represented victim/witness without that person's attorney's consent, and that even with consent the lawyer should decline questions calling for legal advice under RPC 1.7 and 4.3.

Q: What if the victim or witness is not represented and asks for legal advice?

A: The committee said the lawyer should tell the person to seek another attorney, because RPC 1.7 prohibits the lawyer from giving legal advice to the victim/witness, and RPC 4.3 requires correcting any misunderstanding about the lawyer's role.

Background and rules framework

The opinion applied RPC 1.1 (competence) and RPC 1.4 (communication) to the duty to advise the client, RPC 4.2 (communication with represented persons) to contact with a represented victim/witness, and RPC 1.7 (conflicts of interest) and RPC 4.3 (dealing with unrepresented persons) to the limits on giving legal advice to a victim/witness. Each corresponds to the same-numbered ABA Model Rule. The committee treated the question of the defendant's legal duty toward a police request as a legal question outside its advisory role.

Citations and references

Rules of Professional Conduct:

• ABA Model Rule 1.1 (competence); Washington RPC 1.1
• ABA Model Rule 1.4 (communication); Washington RPC 1.4
• ABA Model Rule 1.7 (conflicts of interest); Washington RPC 1.7
• ABA Model Rule 4.2 (communication with represented persons); Washington RPC 4.2
• ABA Model Rule 4.3 (dealing with unrepresented persons); Washington RPC 4.3

See also

• WA Ethics Op. 1020: Prosecutor Advice to Witnesses and Defense Interview Access
• WA Ethics Op. 1600: Duty to Notify Clients of a Statute Change

Source

• Landing page: https://ao.wsba.org/print.aspx?ID=681

Original opinion text

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

Advisory Opinion: 1601
Year Issued: 1995
RPC(s): RPC 1.1; 1.4; 1.7; 4.2; 4.3
Subject: Legal advice to witnesses; advising criminal defendant who contemplates violating law

The Committee discussed your inquiry regarding your ethical responsibilities as a defense attorney in responding to various questions from clients and witnesses. It was the Committee's opinion that you have a duty under RPC 1.1 and 1.4 to advise your client of the law on issues relevant to your client's case. If you believe that your client is contemplating committing acts that violate the law, it is your duty to advise your client on the legal consequences of committing those acts. You should also advise your client against committing those acts.

Regarding your ethical responsibilities as a defense attorney in responding to questions from a victim/witness, the following rules apply: (1) If you know the victim/witness is represented by counsel, RPC 4.2 prohibits you from communicating about the subject matter without the consent of the victim/witness's attorney. Even with the consent of the attorney, under RPC 1.7 and 4.3 you should decline to answer any questions from the victim/witness which call for legal advice. (2) RPC 4.3 requires you to make reasonable efforts to correct the victim/witness's misunderstanding regarding your role in the matter. (3) In response to questions calling for legal advice when the victim/witness is not represented by counsel, you should tell the victim/defendant to seek the advice of another attorney, as you are prohibited by RPC 1.7 from giving legal advice to the victim/witness.

Whether it is proper to tell the defendant that there is no need for the defendant to call the police per an officer's request depends on the legal duties of the defendant under the circumstances, which is a question of law. The Committee is prohibited from issuing legal opinions. If there is an affirmative legal duty to comply with such a request by an officer, then the client should be advised accordingly.