Ezel / Ethics Opinions / SBAND

May a prosecutor discuss a pending criminal case with a represented defendant who requests the meeting against counsel's advice?

Short answer The committee said the defendant's request did not dispense with Rule 4.2's requirement for defense counsel's consent to a communication about the pending matter. It applied the rule to prosecutors as well as private lawyers.
Bar
SBAND
Issued
July 13, 1993
Source
View Original PDF

Apply this to your situation

This page answers the general question as of 1993. Ask about yours and see what the current North Dakota Rules of Professional Conduct say for your facts, with citations.

How much weight this carries: Under North Dakota Rule for Lawyer Discipline 1.2(B), a lawyer who acts in good faith and in reasonable reliance on a written opinion of the association's ethics committee is not subject to sanction for the conduct the opinion addresses. Source.
About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official ethics opinion. The original opinion (linked on this page as a PDF) is the authoritative source for any reliance.
View original ethics opinion (PDF)

Plain-English summary

A state's attorney asked whether he could discuss a pending criminal matter with a represented defendant who requested the conversation after defense counsel advised against it. North Dakota Rule 4.2 prohibited a lawyer from communicating about the represented matter without the other lawyer's consent or legal authorization.

The committee said the rule applied to prosecutors as it did to lawyers in private practice. The defendant's wish to speak without counsel did not excuse obtaining defense counsel's consent. The opinion distinguished communications about separate matters outside the representation, which Rule 4.2 did not prohibit on that ground.

The committee noted potential disqualification if a prosecutor communicated with the represented defendant without consent. Its holding turned on the lack of counsel's consent, not on whether the defendant wanted the meeting.

Currency note

This opinion was issued in 1993, before North Dakota's 2006 revisions to its Rules of Professional Conduct. The later North Dakota Opinion 06-05 states: “On August 1, 2006, material changes to N.D.R. Prof. Conduct 1.10(a) will take effect.” 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 Treat this page as historical context, not current guidance.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.

Common questions

Q: Does the represented defendant's own request permit the prosecutor to discuss the pending case?

A: No. The committee said counsel's consent was still required under Rule 4.2, absent legal authorization.

Q: Did the committee apply Rule 4.2 to prosecutors?

A: Yes. It said the prohibition applied to prosecutors in the same manner as to private lawyers.

Background and rules framework

The opinion applies North Dakota Rule 4.2 and discusses the identical ABA Model Rule 4.2. It cites United States v. Batchelor, 484 F. Supp. 812 (E.D. Pa. 1980), on a defendant's wish to speak without counsel.

Citations and references

Rules of Professional Conduct:

  • North Dakota Rule 4.2, communications with represented persons.
  • ABA Model Rule 4.2, identified as identical in the opinion.

Cases:

  • United States v. Batchelor, 484 F. Supp. 812 (E.D. Pa. 1980).

See also

Source

Original opinion text

Full opinion text unavailable from the official source; see the linked source above for the complete text.

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