Can a prosecutor's office mail trial and roll-call notices directly to represented criminal defendants?

Plain-English summary

A county solicitor's office proposed mailing letters to defendants and their attorneys stating the time and date of trial, notice of a roll call, notice that failure to appear at the roll call would prompt the solicitor to seek a bench warrant, notice that the trial would proceed in the defendant's absence if he was not present when the case was called, and notice that bond could be forfeited for failure to appear. The question was whether sending the notice to defendants violated Rule 4.2.

The committee said Rule 4.2 provides that, in representing a client, a lawyer shall not communicate about the subject of the representation with a party the lawyer knows to be represented by another lawyer, unless the lawyer has the other lawyer's consent or is authorized by law to do so. Because the notification pertained to the subject of the representation, it fell within the rule. The committee concluded the notice would violate Rule 4.2 unless defense counsel consented to the communication or the solicitor was authorized by law to give the notice directly to the defendant. Whether the solicitor's office is authorized by law to give the notice is a matter of substantive law, which the committee said it does not opine on. The committee added that the opinion does not apply to pro se defendants.

Currency note

This opinion was issued in 1991, before the South Carolina Bar's adoption of the 2005 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 Treat this page as historical context, not current guidance.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 mail trial notices straight to a represented defendant?

A: The committee said not without the defense lawyer's consent or legal authorization; doing so communicates about the subject of the representation with a represented party, which Rule 4.2 prohibits.

Q: Does it matter that the notice is also sent to the defendant's attorney?

A: The committee's analysis turned on the direct communication to the represented defendant; absent consent or legal authorization, that communication violated Rule 4.2.

Q: Does this apply to defendants without a lawyer?

A: No. The committee expressly stated the opinion does not apply to pro se defendants.

Background and rules framework

The opinion applies Rule 4.2 (communication with a represented person), corresponding to Model Rule 4.2. The committee identified the "authorized by law" clause as the open question, but treated whether the solicitor is so authorized as a substantive-law matter outside its scope.

Citations and references

Rules of Professional Conduct:

• South Carolina RPC 4.2 / Model Rule 4.2: a lawyer shall not communicate about the subject of the representation with a represented party absent the other lawyer's consent or legal authorization.

See also

• SC Bar Ethics Op. 11-04: Lawyer-Investigator and 4.2
• SC Bar Ethics Op. 01-01: Contacting Former Employees
• SC Bar Ethics Op. 05-04: Suspicion vs. Knowledge

Source

• Landing page: https://www.scbar.org/for-lawyers/quicklinks/legal-resources/ethics-advisory-opinions/ethics-advisory-opinion-91-02/

Original opinion text

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

UPON THE REQUEST OF A MEMBER OF THE SOUTH CAROLINA BAR, THE ETHICS ADVISORY COMMITTEE HAS RENDERED THIS OPINION ON THE ETHICAL PROPRIETY OF THE INQUIRER’S CONTEMPLATED CONDUCT. THIS COMMITTEE HAS NO DISCIPLINARY AUTHORITY. LAWYER DISCIPLINE IS ADMINISTERED SOLELY BY THE SOUTH CAROLINA SUPREME COURT THROUGH ITS COMMISSION ON LAWYER CONDUCT.

Ethics Advisory Opinion 91-02

A county solicitor's office proposes to send letters to defendants and their attorneys which would state the time and date of a defendant's trial, notification of a roll call, notification that if a defendant fails to appear at the roll call the solicitor will apply to the presiding judge for a bench warrant for the defendant's arrest, notification that if a defendant is not present when his case is called for trial that the trail will proceed in his absence, and notification that any bond may be forfeited for failure to appear.

Question:
Does the proposed notice violate Rule 4.2 of the South Carolina Rules of Professional Conduct?

Summary:
This notice violates Rule 4.2 unless the solicitor's office has the consent of counsel for defendant to make such notice or if the solicitor is authorized by law to give the notice to the defendant.

Opinion:
Rule 4.2 of the South Carolina Rules of Professional Conduct provides as follows: In representing a client a lawyer shall not 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. The notification described pertains to the subject of the representation and therefore falls within the ambit of the rule.

The subject notification would violate Rule 4.2 unless counsel for the defendant consents to the communication or unless the solicitor is authorized by law to give the subject notice to the defendant.

Whether the solicitor's office is authorized by law to give the subject notice to a defendant is a matter of substantive law. This Committee does not issue opinions on substantive law.

(Note: This opinion does not apply to pro se defendants).