Can a prosecutor question a represented criminal defendant, seek a guilty plea, or order a lie-detector test without the defense lawyer's consent?

Plain-English summary

The inquiry asked whether it violates the Canons for an attorney on a district attorney's staff to attempt to elicit a confession or statement from a represented criminal defendant, to work out a plea of guilty, or to submit the defendant to a lie-detector test or truth serum, in each case without consulting the defendant's attorney of record or permitting him to be present.

The Committee treated all three questions as the same and held the conduct described in each violates Canons 5 and 9 (9-0). It reasoned that a district attorney is an officer of the court, that Canon 5 makes the prosecutor's primary duty "not to convict, but to see that justice is done," and that an attorney-client relationship exists between the district attorney and the State and county. A person charged with a criminal offense is a "party" as that term is used in the first two sentences of Canon 9, and comparable conduct in a civil case is widely held unethical. The Committee noted its earlier Opinion 87 had reached the right result (condemning examination of a defendant by doctors during trial without counsel's consent) but on the wrong reasoning, Canons 19 and 22, which it found inapplicable. The opinion cross-references Opinion 144.

Currency note

This opinion was issued in 1956, under the former Texas Canons of Ethics, which the Texas Disciplinary Rules of Professional Conduct replaced effective January 1, 1990. 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 Treat this page as historical context, not current guidance.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 seek a confession or guilty plea from a represented defendant directly?

A: No. The Committee held that doing so without the consent of the defendant's attorney of record violates Canons 5 and 9, because the defendant is a "party" (9-0).

Q: Does a lie-detector test or truth serum fall under the same rule?

A: Yes. The Committee treated all three scenarios as the same and found each violated Canons 5 and 9.

Q: How does the prosecutor's special duty figure in?

A: The Committee emphasized Canon 5's command that a prosecutor's primary duty is "not to convict, but to see that justice is done," reinforcing that the defendant must be dealt with through counsel.

Background and rules framework

The opinion interprets former Texas Canon 9 (communication with a party represented by counsel) and Canon 5 (the prosecutor's duty to see that justice is done). The modern analogs are ABA Model Rule 4.2 (communication with a represented person) and Model Rule 3.8 (special responsibilities of a prosecutor).

Citations and references

Rules of Professional Conduct:

• MR 4.2 (communication with a represented person), as the modern analog
• MR 3.8 (special responsibilities of a prosecutor), as the modern analog to Canon 5
• Texas Canon 9 (communication with a represented party)
• Texas Canon 5 (prosecutor's duty to see that justice is done)

Other opinions cited:

• Texas Ethics Opinion 87: reached the right result on the wrong reasoning (Canons 19 and 22)
• Texas Ethics Opinion 144: cross-referenced

See also

• TX Ethics Op. 144: Investigators and Guilty Pleas
• TX Ethics Op. 143: Prosecutor Pressing a Civil Suit
• TX Ethics Op. 139: Joint Letter Demanding an Exam

Source

• Landing page: https://www.legalethicstexas.com/resources/opinions/opinion-137/
• Original PDF: https://tcle-web.s3.amazonaws.com/public/documents/Opinion_137.pdf

Original opinion text

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

QUESTION PRESENTED

Is it in violation of the Canons of Ethics for an attorney being a member of a district attorney's staff to attempt to elicit a confession or statement from a defendant charged with a criminal offense without consulting the attorney of record of such defendant or giving him permission to be present?
For an attorney on the staff of a district attorney to attempt to work out a plea of guilty for a defendant charged with a criminal offense without consulting the attorney of record for such defendant or permitting him to be present at such time?
For an attorney employed in the office of the district attorney to submit a defendant to a lie detector test, or, administer truth serum to said defendant without first obtaining the consent of the attorney of record for said defendant or permitting such attorney to be present at such time?

18 Baylor L. Rev. 251 (1966)

PROSECUTION OF THOSE ACCUSED OF A CRIME - NEGOTIATIONS WITH THE OPPOSITE PARTY
Since the defendant in a criminal action is a party, a district attorney may not attempt to elicit a statement or plea of guilty from the defendant nor submit him to a lie detector test or otherwise deal with the defendant without consent of his attorney when one has been engaged. The duty of a district attorney is not to convict, but to see that justice is done.

Canons 5, 9.

We can start with two propositions which are axiomatic.
An attorney is an officer of the court. A fortiori, a district attorney is an officer of the court. The first sentence of the second paragraph of Canon 5 states: "It should be the primary duty opinion of a member engaged in public prosecution not to convict, but to see that justice is done."
The attorney and client relationship exists between a district attorney on the one hand and the state and county on the other.
It is our opinion that a person charged with a criminal offense is a party as that term is used in the first two sentences of Canon 9. Opinions are plentiful, both by the American Bar Association Committee and by this committee, to the effect that comparable conduct in a civil case would be unethical.

We have carefully checked every opinion by this committee and by the committee of the American Bar Association and find only one opinion on this question. In Opinion No. 87, this committee held that it violates Canons 19 and 22 for a prosecuting attorney to have a defendant in a criminal case examined by doctors during the course of the trial without the knowledge or consent of counsel for defendant. We think that opinion reached the correct result but assigned the wrong reason. It is difficult to see how Canons 19 or 22 have any application.

It is our opinion that all three questions submitted are the same. The conduct described in each violates Canons 5 and 9. (9-0) (See Opinion 144)

Tex. Comm. On Professional Ethics, Op. 137 (1956)