Can an assistant district attorney or a DA's nonlawyer staff advise an unrepresented traffic defendant on plea options that would reduce insurance points or save a license?

Plain-English summary

In one county, officers who issued traffic citations often told the cited driver to call the district attorney's office directly to get the charge reduced or a prayer for judgment continued. A driver who called or visited would speak with an assistant district attorney, a victim/witness coordinator, or a secretary, who would counsel the driver about pleas to lesser infractions that would reduce insurance points, save money on premiums, or prevent a license forfeiture, after which a guilty-plea form to a lesser included infraction was prepared. The question was whether advising citizens about their plea options in this way was permitted.

The opinion concluded that it was not. It reasoned that the district attorney and the office's legal staff represent the State of North Carolina when they negotiate a citation against a citizen, so the citizen's and the State's interests are in conflict. Under Rule 7.4(b) and (c), the lawyer may not give the unrepresented person advice other than to seek counsel, may not imply the lawyer is disinterested, and must correct any misunderstanding of the lawyer's role. The opinion added that Rule 7.3(b) imposes on a prosecutor a special duty to advise an unrepresented person charged in a criminal matter of the right to obtain counsel, and that under Rule 3.3(b) the district attorney and the office's lawyers must make reasonable efforts to ensure that nonlawyer staff conduct is compatible with those obligations, so the same limits apply to the coordinator and secretary. The opinion closed by clarifying that nothing in it prohibits a staff member from responding to an unrepresented citizen's questions about which pleas the office would be willing to approve.

Currency note

This opinion was issued in 1994, before the North Carolina State Bar's adoption of the 2003 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 Treat this page as historical context, not current guidance.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: May an assistant district attorney advise an unrepresented driver how to plead to cut insurance points?

A: No. The opinion concluded that because the DA's staff represent the State, whose interests conflict with the citizen's, Rule 7.4(b) bars giving the unrepresented person advice other than to seek counsel.

Q: Does the rule against giving advice also reach the DA's nonlawyer staff?

A: Yes. The opinion held that under Rule 3.3(b) the office's lawyers must ensure that nonlawyer staff conduct, such as that of a victim/witness coordinator or secretary, is compatible with the lawyers' obligation not to advise the unrepresented citizen.

Q: Can the office tell a citizen anything about pleas?

A: Yes. The opinion stated it does not prohibit a staff member from responding to an unrepresented citizen's questions about which pleas the district attorney's office would be willing to approve.

Q: Does a prosecutor have any affirmative duty here?

A: Yes. The opinion noted that Rule 7.3(b) imposes on a prosecutor a special duty to advise an unrepresented person charged in a criminal matter of the right to obtain counsel.

Background and rules framework

The opinion applied North Carolina's then-current Rule 7.4(b) and (c), corresponding to Model Rule 4.3 on dealing with unrepresented persons, treating the DA's office as adverse to the cited citizen. It also drew on Rule 7.3(b), the prosecutor's special-responsibility provision corresponding to Model Rule 3.8, and on Rule 3.3(b), the supervision provision corresponding to Model Rule 5.3, which requires lawyers to ensure nonlawyer staff conduct conforms to the lawyers' own duties.

Citations and references

Rules of Professional Conduct:

• MR 4.3 (dealing with unrepresented person)
• MR 3.8 (special responsibilities of a prosecutor)
• MR 5.3 (responsibilities regarding nonlawyer assistants)
• North Carolina Rule 7.4(b), (c); Rule 7.3(b); Rule 3.3(b)

See also

• NC Ethics Op. RPC 194: pre-suit letter to an unrepresented defendant
• NC Ethics Op. RPC 193: communicating with an uninsured or underinsured defendant
• NC Ethics Op. RPC 30: communication with a represented criminal defendant

Source

• Landing page: https://www.ncbar.gov/for-lawyers/ethics-and-governing-rules/ethics-opinions/opinions/rpc-189/

Original opinion text

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

Inquiry:

In County X, when a citizen receives a traffic citation, he or she is often told by the police officer or state trooper making the stop to call the district attorney's office directly in order to get the charge reduced or to get a prayer for judgment continued. If the citizen subsequently calls or goes to the district attorney's office, he or she will speak with an assistant district attorney, a victim/witness coordinator, or a secretary. The member of the district attorney's staff counsels the citizen about pleas to lesser infractions available to the citizen which will reduce insurance points and save the citizen money on his or her insurance premiums. If relevant, the staff member might also give the citizen advice about pleas that would prevent a forfeiture of the citizen's driver's license. Following the discussion, a Form CR-202, from the Administrative Office of the Courts, entering the citizen's guilty plea to a lesser included infraction, is prepared for the citizen. Is the practice of advising citizens as to their plea options allowed under the Rules of Professional Conduct?

Opinion:

No. An assistant district attorney or nonlawyer member of the district attorney's staff who is supervised by the district attorney may not give legal advice to a citizen charged with a traffic infraction who is not represented by a lawyer. The district attorney and his or her legal staff represent the State of North Carolina when they negotiate a traffic citation against a citizen. Where the interests of an unrepresented person and the interests of a lawyer's client are in conflict, Rule 7.4(b) and Rule 7.4(c) prohibit the lawyer from (1) giving advice to the unrepresented person other than the advice to seek counsel and (2) implying that the lawyer is disinterested. If the lawyer knows or should know that the unrepresented person misunderstands the lawyer's role, the lawyer must make reasonable efforts to correct the misunderstanding. Rule 7.4(c). In addition, Rule 7.3(b) imposes upon a prosecutor a special duty to advise unrepresented individuals who are charged in a criminal matter of the individual's right to obtain counsel. The district attorney and the other lawyers in his or her office must make reasonable efforts to ensure that the conduct of nonlawyer members of the staff is compatible with the professional obligations of the lawyers not to give legal advice to an unrepresented citizen charged with an infraction. See Rule 3.3(b). The foregoing opinion does not prohibit a member of a district attorney's staff from responding to questions from an unrepresented citizen regarding the pleas the district attorney's office would be willing to approve.