Can a North Carolina prosecutor threaten to use the office's power to calendar criminal cases to pressure a defendant into accepting a plea bargain?

Plain-English summary

The opinion addressed a prosecutor who, after a defendant refused a plea bargain, told defense counsel that the client would "be sitting in the courtroom all week" and "on the calendar every Monday morning for weeks to come." The question was whether it was unethical for the prosecutor to imply that he would use the district attorney's statutory calendaring power to delay the trial unless the defendant pleaded.

The opinion concluded that it was. It reasoned that threatening to use the discretion to schedule a criminal trial to coerce a plea agreement is prejudicial to the administration of justice in violation of Rule 1.2(d), and that a prosecutor should use restraint in the discretionary exercise of the calendaring authority. It relied on comment [1] to Rule 7.3, which states that the prosecutor represents the sovereign and should use restraint in the discretionary use of government powers.

On the second question, whether a lawyer who overheard the exchange had to report it, the opinion concluded that the answer depended on seriousness. Rule 1.3(a) requires reporting only conduct that raises a substantial question as to a lawyer's honesty, trustworthiness, or fitness, and comment [3] explains that "substantial" refers to the seriousness of the offense, not the quantum of evidence. The opinion concluded that an isolated incident reflecting a momentary lapse does not raise a substantial question, so the overhearing lawyer is not required to report it and may instead counsel the prosecutor; but if the lawyer knows the prosecutor routinely abuses the calendaring power, or continues after being advised the conduct violates the Rules, the lawyer should report the matter to the State Bar or other appropriate authority.

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 Treat this page as historical context, not current guidance.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: Is it improper for a prosecutor to threaten calendaring delays to force a plea?

A: Yes. The opinion concluded that threatening to use the discretion to schedule a criminal trial to coerce a plea is prejudicial to the administration of justice under Rule 1.2(d).

Q: Must a lawyer who overhears such a threat report it?

A: Not necessarily. The opinion concluded that an isolated lapse does not raise a substantial question of fitness under Rule 1.3(a), so the lawyer is not required to report it and may instead counsel the prosecutor.

Q: When does reporting become required?

A: The opinion concluded that the lawyer should report if he knows the prosecutor routinely abuses the calendaring power, or if the prosecutor continues the conduct after being advised that it violates the Rules.

Background and rules framework

The opinion applied North Carolina's then-current Rule 1.2(d) on conduct prejudicial to the administration of justice (corresponding to Model Rule 8.4(d)) and the special-responsibilities-of-a-prosecutor provision, Rule 7.3 (corresponding to Model Rule 3.8), for the restraint expected in the discretionary use of government power. The reporting analysis applied Rule 1.3(a) and its comment [3], which correspond to Model Rule 8.3.

Citations and references

Rules of Professional Conduct:

• MR 8.4 (misconduct; conduct prejudicial to the administration of justice)
• MR 3.8 (special responsibilities of a prosecutor)
• MR 8.3 (reporting professional misconduct)
• North Carolina Rule 1.2(d), Rule 7.3, and Rule 1.3(a)

See also

• NC Ethics Op. 97 FEO 10: undercover officer planted in a represented defendant's cell
• NC Ethics Op. 2001-5: LAP support groups and the duty to report

Source

• Landing page: https://www.ncbar.gov/for-lawyers/ethics-and-governing-rules/ethics-opinions/opinions/rpc-243/

Original opinion text

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

Inquiry #1:

Defense Attorney represents Client on a pending criminal charge. Prosecutor offered Client a plea bargain. Defense Attorney informs Prosecutor that Client will not accept the offered plea bargain. Prosecutor tells Defense Attorney that if Client does not accept the offered plea bargain, "Client's going to be sitting in the courtroom all week and he's going to be on the calendar every Monday morning for weeks to come." Is it unethical for Prosecutor to imply that he will use the statutory calendaring power of the district attorney's office to delay Client's trial if Client will not accept the plea bargain?

Opinion #1:

Yes, threatening to use the discretion to schedule a criminal trial to coerce a plea agreement from a criminal defendant is prejudicial to the administration of justice in violation of Rule 1.2(d) of the Rules of Professional Conduct. A prosecutor should use restraint in the discretionary exercise of the authority to calendar criminal cases. See comment [1] to Rule 7.3, "Special Responsibilities of a Prosecutor," ("…the prosecutor represents the sovereign and therefore should use restraint in the discretionary use of government powers…").

Inquiry #2:

If a lawyer overhears the conversation between Prosecutor and Defense Attorney, does the lawyer have a duty to report Prosecutor's conduct to the State Bar or other appropriate authority?

Opinion #2:

Rule 1.3(a) requires a lawyer who has knowledge that another lawyer has committed a violation of the Rules of Professional Conduct "that raises a substantial question as to that lawyer's honesty, trustworthiness, or fitness as a lawyer in other respects" to report the conduct to the North Carolina State Bar or other appropriate authority. Comment [3] to Rule 1.3 states that

[t]his rule limits the reporting obligation to those offenses that a self-regulating profession must vigorously endeavor to prevent. A measure of judgment is, therefore, required in complying with the provisions of this rule. The term "substantial" refers to the seriousness of the alleged offense and not the quantum of evidence of which the lawyer is aware.

Prosecutor's conduct may be an isolated incident resulting from a momentary lapse in judgment. If so, such conduct does not raise a "substantial" question as to Prosecutor's fitness as a lawyer. The lawyer who overhears the conversation may want to counsel Prosecutor with regard to his conduct, but the lawyer is not required to report the conduct to the State Bar. However, if the lawyer knows that Prosecutor routinely abuses the discretionary power to schedule criminal cases or, after being advised that this conduct is a violation of the Rules, Prosecutor continues the conduct, the lawyer should report the matter to the State Bar or other appropriate authority.