What should a North Carolina state appellate lawyer do when a represented criminal defendant writes directly asking for advice on removing his own appellate counsel?

Plain-English summary

The opinion addressed a death-row inmate whose conviction and sentence were on automatic appeal to the North Carolina Supreme Court, with Attorney A representing him. The inmate wrote directly to Attorney X, the deputy attorney general representing the state on the appeal, saying he wanted to expedite his execution, did not want an appellate brief filed or his case argued, and asking Attorney X how to have Attorney A removed. The question was what Attorney X should do.

The opinion concluded that Attorney X should send copies of the letters to Attorney A without communicating directly with the inmate, and that a copy of the transmittal letter to Attorney A may be sent to the inmate. The defendant remained represented by counsel on the appeal, so the opposing lawyer for the state could not respond to him directly or advise him; the proper course was to route the correspondence to his lawyer.

Currency note

This opinion was issued in 1997, 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 Treat this page as historical context, not current guidance.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: Can a prosecutor or state lawyer answer a letter sent directly by a represented defendant?

A: No. The opinion concluded that the lawyer for the state should not communicate directly with the represented defendant about the matter.

Q: What should the state's lawyer do with the letters?

A: The opinion concluded that the lawyer should send copies of the letters to the defendant's appellate counsel.

Q: Can the state's lawyer let the defendant know the letters were forwarded?

A: Yes. The opinion concluded that a copy of the transmittal letter to the defendant's counsel may be sent to the defendant.

Background and rules framework

The opinion applied North Carolina's then-current Rule 7.4 on communicating with a person represented by counsel (corresponding to Model Rule 4.2). Because the defendant was represented on the appeal, the opposing lawyer could not communicate with him directly and had to direct the correspondence to his counsel.

Citations and references

Rules of Professional Conduct:

• MR 4.2 (communication with a person represented by counsel)
• North Carolina Rule 7.4

Statutes:

• G.S. 15A-2000(d) (automatic appeal of a death sentence to the North Carolina Supreme Court)

See also

• NC Ethics Op. RPC 249: communicating with a child represented by a GAL and advocate
• NC Ethics Op. 97 FEO 10: undercover officer planted in a represented defendant's cell

Source

• Landing page: https://www.ncbar.gov/for-lawyers/ethics-and-governing-rules/ethics-opinions/opinions/rpc-233/

Original opinion text

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

Editor's Note: This opinion was originally published as RPC 233 (Revised).

Inquiry #1:

Client is on death row. Attorney A is representing Client on the automatic appeal of his conviction and sentence of death to the North Carolina Supreme Court pursuant to G.S. §15A-2000(d). Client sent letters to Attorney X, the deputy attorney general who is representing the state on the appeal. In the letters, Client states that he wants to expedite his execution. For this reason, he does not want an appellate brief filed on his behalf nor does he want his case argued. Client asks Attorney X to advise him on how to have Attorney A removed from his representation. What should Attorney X do?

Opinion #1:

Copies of the letters should be sent to Attorney A without communicating directly with Client. However, a copy of the transmittal letter to Attorney A may be sent to Client.