Can a prosecutor have police interview a jailed represented defendant about another person's crimes without the defense lawyer's consent?

Plain-English summary

The inquiry concerned a prosecuting attorney asking a law enforcement officer to interview a defendant, incarcerated pending trial and represented by counsel, about the defendant's knowledge of a third person's criminal activity, for example whether a cellmate had admitted involvement in unrelated crimes. The prosecutor knew the defendant was represented in the pending case but did not seek defense counsel's permission before the interview. The inquirer noted that a defendant might reasonably believe cooperation would earn future leniency.

The committee was of the opinion that such contacts would not violate the Rules of Professional Conduct unless the prosecutor's conduct, personally or through an officer acting at the prosecutor's direction, would affect the defendant's case. It concluded that if the prosecutor or officer led the defendant to believe that future leniency or consideration in the pending case could result, a violation of RPC 4.2 would occur, because those future considerations related to the pending case, which is the "subject of the representation," and RPC 4.2 then required the defendant's lawyer's consent before the communication. The committee said mere questioning about an unrelated matter, such as a jail crime, did not violate RPC 4.2, but recognized that many in-custody defendants might expect cooperation to bring leniency, so to avoid uncertainty the better practice would be for the interviewer to expressly advise the defendant that the discussion about the third person had no relation to the defendant's pending case and that answering or not, and the answers given, would carry no consideration in the handling or outcome of the case. The committee added that a prosecuting attorney is responsible under RPC 8.4(a) for the actions of law enforcement officers acting at the prosecutor's direction or with the prosecutor's permission. A dissenting member would have treated the cautionary advice as required, not merely the better practice, and would have had the prosecutor refrain from the discussion unless that advice was first made unmistakably clear.

Currency note

This opinion was issued in 1986, 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 mentioned here.

Common questions

Q: Can a prosecutor have police question a jailed, represented defendant about someone else's crimes?

A: The committee said such questioning about an unrelated matter did not violate RPC 4.2, unless the contact would affect the defendant's own pending case.

Q: When would the interview violate RPC 4.2?

A: The committee said it would if the prosecutor, or an officer acting at the prosecutor's direction, led the defendant to believe future leniency in the pending case could result, because that relates to the subject of the representation and requires the defense lawyer's consent.

Q: What did the committee describe as the better practice?

A: The committee said the interviewer should expressly advise the defendant that the discussion about the third person had no relation to the pending case and that whether the defendant answered, and the answers given, would carry no consideration in the handling or outcome of the case.

Q: Is the prosecutor responsible for the police officer's conduct?

A: The committee said yes, under RPC 8.4(a) a prosecutor is responsible for the actions of law enforcement officers acting at the prosecutor's direction or with the prosecutor's permission.

Background and rules framework

The opinion interpreted RPC 4.2 (Model Rule 4.2, communication with a person represented by counsel), which barred communicating about the subject of the representation with a represented party absent the other lawyer's consent or authorization by law, and RPC 8.4(a) (Model Rule 8.4(a), violating the rules through the acts of another). The committee's analysis turned on whether the interview about a third person's conduct in fact reached the defendant's own pending case, for example by signaling leniency, rather than on the mere fact that the defendant was represented.

Citations and references

Rules of Professional Conduct:

• Model Rule 4.2 / Washington RPC 4.2 (communication with a represented person)
• Model Rule 8.4 / Washington RPC 8.4(a) (misconduct through the acts of another)

See also

• WSBA Ethics Op. 1000: Contact With an Opposing Party Represented by Counsel
• WSBA Ethics Op. 1274: Communicating With City Employees
• WSBA Ethics Op. 1363: Contacting a Represented Government Official

Source

• Landing page: https://ao.wsba.org/print.aspx?ID=1339

Original opinion text

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

Advisory Opinion: 801
Year Issued: 1986
RPC(s): RPC 4.2, 8.4(a), 86-2
Subject: Interviews By Prosecuting Attorneys of Represented Defendants Concerning Matters Unrelated to the Representation [Published Informal Opinion 86-2]

[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 defendants 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 defendants criminal activity but to obtain information concerning that defendants 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 cellmates 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 defendants 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 defendants 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 defendants 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 defendants 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."