If a represented criminal defendant approaches the prosecutor directly, claims his lawyer serves others' interests, and offers to cooperate in secret, may the prosecutor deal with him?

Plain-English summary

The opinion addressed a represented criminal defendant who initiated personal contact with the prosecuting district attorney. He claimed his lawyer was not of his choosing, was chosen by others, was not representing his interests, was advising him to keep quiet, and was a "watchdog" for other conspirators. He expressed a desire to cooperate with the State, but only if the State agreed his lawyer would not be told. The question was whether the district attorney could communicate with and accept the cooperation of the defendant without telling his lawyer.

The opinion concluded that the district attorney may not. Rule 7.4(a) prohibits a lawyer from communicating about the subject of the representation with a party the lawyer knows to be represented by another lawyer, absent that lawyer's consent or authorization by law. But the opinion said the district attorney should not turn a deaf ear: the rule does not bar confidential discussions with a person seeking another opinion on his legal situation, and a lawyer may always advise an unrepresented person to secure counsel (Rule 7.4(b)), while a prosecutor has a special duty under Rule 7.3(b) to make reasonable efforts to assure the accused is advised of and given a reasonable opportunity to obtain counsel. The district attorney should therefore tell the defendant of his absolute right to an attorney representing only his interests, that he may discharge the conflicted lawyer, that the court will appoint counsel if he cannot afford one, and that the district attorney will help bring him before the court. The opinion distinguished the situation where the defendant says he has no lawyer but someone is claiming to represent him, in which case Rule 7.4(a) does not bar communication because the prosecutor does not know the defendant to be represented, though the Rule 7.3(b) duty still applies. Finally, the opinion concluded the district attorney may have a duty under Rule 1.3 to report the defendant's lawyer to the State Bar, because the allegations, if they amount to knowledge rather than suspicion, raise a substantial question about the lawyer's fitness, implicating possible violations of Rules 1.2(c), 1.2(d), 5.1, 5.6, 6(b)(3), and 7.1(a)(2).

Currency note

This opinion was issued in 1995, 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 accept secret cooperation from a represented defendant who comes forward?

A: No. The opinion concluded Rule 7.4(a) bars the prosecutor from communicating with or accepting the cooperation of a defendant known to be represented by counsel.

Q: What should the prosecutor do with the defendant's complaint about his lawyer?

A: Direct him toward counsel of his choice. The opinion concluded the prosecutor should advise the defendant of his right to a lawyer representing only his interests, that he may discharge the conflicted lawyer, that the court will appoint one if needed, and that the prosecutor will help bring him before the court.

Q: Is the analysis different if the defendant says he has no lawyer?

A: Yes. The opinion concluded that if the defendant claims he has no lawyer but someone is claiming to represent him, Rule 7.4(a) does not bar communication, because the prosecutor does not know him to be represented, though the Rule 7.3(b) duty to assist with counsel still applies.

Q: Must the prosecutor report the defendant's lawyer?

A: Possibly. The opinion concluded that if the information rises to knowledge rather than suspicion, Rule 1.3 requires the prosecutor to report the lawyer to the State Bar, because the allegations raise a substantial question about the lawyer's fitness.

Background and rules framework

The opinion applied North Carolina's then-current Rule 7.4(a), the no-contact rule (corresponding to Model Rule 4.2); Rule 7.4(b) and Rule 7.3(b), addressing dealings with unrepresented persons and a prosecutor's duty to assure access to counsel (corresponding to Model Rules 4.3 and 3.8); and Rule 1.3, the misconduct-reporting rule (corresponding to Model Rule 8.3). It read the reporting duty to reach only violations raising a substantial question about a lawyer's honesty, trustworthiness, or fitness.

Citations and references

Rules of Professional Conduct:

• MR 4.2 (communication with person represented by counsel)
• MR 3.8 (special responsibilities of a prosecutor)
• MR 8.3 (reporting professional misconduct)
• North Carolina Rule 7.4(a), Rule 7.3(b), Rule 1.3

See also

• NC Ethics Op. RPC 233: receipt of a letter from a represented criminal defendant
• NC Ethics Op. RPC 204: prosecutor's special treatment for charitable contributions
• NC Ethics Op. RPC 202: communications with elected officials

Source

• Landing page: https://www.ncbar.gov/for-lawyers/ethics-and-governing-rules/ethics-opinions/opinions/rpc-30/

Original opinion text

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

Inquiry:

A criminal defendant, represented by an attorney, initiates personal contact with the district attorney who is prosecuting the charges against him. The criminal defendant tells the district attorney that the attorney representing him is not counsel of his choice, was selected by someone else, and is not representing his interests. The criminal defendant further says that the attorney is advising him to keep quiet and that he (the criminal defendant) believes the attorney is a "watchdog" for other conspirators in the criminal enterprise of which the criminal defendant has been a part. The criminal defendant expresses a willingness and desire to cooperate with the State but says that he will do so only if the State agrees that his attorney not be told he is cooperating.

May the district attorney engage in a period of communication with, and accept the cooperation of, the criminal defendant, without revealing the communication and cooperation to the criminal defendant's attorney? What should the district attorney do in response to the criminal defendant's contact?

Opinion:

No, the district attorney may not engage in such discourse with the criminal defendant. The Rules of Professional Conduct prohibit communication and cooperation between the district attorney and a criminal defendant whom the district attorney knows to be represented by counsel. Rule 7.4(a) provides that a lawyer "shall not....(c)ommunicate or cause another to 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."

However, the district attorney need not, and indeed, should not turn a deaf ear to the criminal defendant's complaint. The Rule does not prohibit confidential discussions with a person seeking another opinion on his legal situation. Rule 7.4, comment. And, in dealing with "a person who is not represented," a lawyer always is permitted to advise the person to secure counsel. Rule 7.4(b). Furthermore a district attorney has a special duty to "(m)ake reasonable efforts to assure that the accused has been advised of the right to and the procedure for obtaining counsel and has been given reasonable opportunity to obtain counsel." Rule 7.3(b).

Thus, confronted with the contact described above, the district attorney should inform the criminal defendant that he has the absolute right to an attorney who will represent only his interests, that he may discharge the attorney who is representing other interests, that the Court will appoint an attorney to represent his interests if he cannot afford to employ one, and that the district attorney will assist in having him brought before the Court so that the discharge and appointment may be accomplished.

The situation is different where the criminal defendant's complaint to the district attorney is that he has no lawyer but that an attorney is claiming to represent him. In that circumstance, ethical considerations do not prohibit communications between the district attorney and the criminal defendant, since Rule 7.4(a) applies only where the district attorney knows the party to be represented by counsel. Even there, however, the district attorney still has a special duty under Rule 7.3(b), to assist the criminal defendant on gaining access to counsel.

In addition, in either situation, the district attorney may have a duty to inform the North Carolina State Bar of the misconduct of the criminal defendant's attorney. Rule 1.3 requires a lawyer to report misconduct when he or she 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." The criminal defendant's allegations, as described in the inquiry, are of misconduct in the extreme, involving possible violations of Rule 1.2(c) (dishonesty and fraud), Rule 1.2(d) (prejudice to the administration of justice), Rule 5.1 (conflicts of interest), Rule 5.6 (fees from third parties), Rule 6(b)(3) (nondiligent-representation), and Rule 7.1(a)(2) (prejudice or damage to client). The Rule does not require a lawyer to report "every violation" of the Rules of Professional Conduct, but only those "that a self-regulating profession must vigorously endeavor to prevent." Rule 1.3, comment. Here, the allegations clearly raise "a substantial question" about the attorney's fitness within the meaning of Rule 1.3. If the quality of the allegations and information are sufficient to imbue the district attorney with "knowledge" of violations, rather than a mere suspicion of them, then he must report the attorney to the State Bar.