What are a prosecutor's and defense lawyer's ethical duties toward the victim in a domestic violence case?

Plain-English summary

Opinion 20-02 responded to an association of domestic violence prosecutors that submitted case-specific questions. Rather than answer each question, the Committee restated the general rules that govern how prosecutors and defense lawyers may deal with an alleged victim. The threshold point is identifying the client: the prosecutor represents the government, and the defense lawyer represents only the defendant. The alleged victim is the client of neither.

Because of that, the Committee applied Rule 1.7: a defense lawyer cannot represent the defendant and the alleged victim in the same case, and a prosecutor must make plain that the office represents the state, whose interests may diverge from the victim's. Victim liaisons in a prosecutor's office must likewise make their role clear. Where the victim is unrepresented, Rule 4.3 prohibits either lawyer from stating or implying disinterest and from giving legal advice other than the advice to seek counsel; the opinion gives concrete examples, such as defense counsel improperly urging a victim not to testify, or a prosecutor improperly pressuring a reluctant victim to testify. Both lawyers may, however, refer the victim to independent counsel, including the Utah Crime Victims Legal Clinic.

Where the victim is represented, Rule 4.2 bars communication about the subject of the representation without the victim's counsel's consent, subject to Rule 4.2(c)'s recognition that limits on a prosecutor's contact are not absolute. The opinion also reminds both sides that Rules 1.1 and 1.3 require competence and diligence, which may require interviewing the alleged victim, and that such interviews must respect the victim's rights and guard against later claims of intimidation or subornation of perjury.

In practice

Under this opinion, a Utah prosecutor or defense lawyer in a domestic violence case should treat the alleged victim as a non-client. Per the opinion, neither lawyer may imply they represent the victim, neither may give the victim legal advice beyond advising them to obtain counsel (with referrals such as the Utah Crime Victims Legal Clinic permitted), contact with a represented victim requires the victim's counsel's consent under Rule 4.2, and competence and diligence under Rules 1.1 and 1.3 may require interviewing the victim while respecting the victim's rights.

Common questions

Q: Does the prosecutor or defense lawyer represent the victim in a domestic violence case?

A: No. The opinion concludes the alleged victim is the client of neither; the prosecutor represents the state and the defense lawyer represents only the defendant, and Rule 1.7 bars a defense lawyer from also representing the victim in the same case.

Q: Can a defense lawyer or prosecutor give the victim advice about testifying?

A: No, beyond advising the victim to seek counsel. The opinion states it is improper for defense counsel to propose that a victim decline to testify or skip trial, and improper for a prosecutor to give advice that would coerce a reluctant victim to testify; both may refer the victim to independent counsel.

Q: Can the lawyers contact the victim directly?

A: If the victim is represented, Rule 4.2 bars communication about the subject of the representation without the victim's counsel's consent, though Rule 4.2(c) recognizes a prosecutor's contact limits are not absolute. If the victim is unrepresented, Rule 4.3 applies and the lawyer may not imply disinterest or give legal advice other than to seek counsel.

Q: May counsel interview the alleged victim?

A: Yes, where competence and diligence require it under Rules 1.1 and 1.3. The opinion notes both sides must be mindful of the victim's rights and of risks such as later claims of intimidation or suggestion of subornation of perjury.

Background and rules framework

The opinion interprets several Utah Rules of Professional Conduct that correspond to their ABA Model Rule counterparts: Rule 1.7 (concurrent conflicts of interest), Rule 4.2 (communication with a represented person), Rule 4.3 (dealing with an unrepresented person), and Rules 1.1 and 1.3 (competence and diligence). It frames the analysis around identifying the client, drawing on the Preamble's recognition that difficult issues of professional discretion must be resolved through sensitive professional and moral judgment.

Citations and references

Rules of Professional Conduct:

• MR 1.7 / Utah RPC 1.7 (concurrent conflicts of interest)
• MR 4.2 / Utah RPC 4.2 (communication with a represented person)
• MR 4.3 / Utah RPC 4.3 (dealing with an unrepresented person)
• MR 1.1 / Utah RPC 1.1 (competence)
• MR 1.3 / Utah RPC 1.3 (diligence)

Other references:

• Hazard, Hodes & Jarvis, The Law of Lawyering (2019 Supplement), on identifying the client
• Utah Crime Victims Legal Clinic (referral resource)

See also

• ABA Formal Op. 467: Prosecutor Supervisory Duties
• ABA Formal Op. 95-396: The No-Contact Rule (4.2)
• ABA Formal Op. 472: Limited-Scope Clients and Contact

Source

• Landing page: https://www.utahbar.org/ethics-opinions/20-02/

Original opinion text

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

Issue

1. What ethical duties apply to prosecutors and defense lawyers when dealing with victims in domestic violence criminal cases?

Opinion

OPINION

2. All counsel must be mindful of the conflicts of interest rules when dealing with victims of domestic violence cases. Representation of a criminal defendant in a criminal case precludes representation of the alleged victim in the same case. Both prosecutor and defense counsel must be mindful of the rules relating to communications with represented or with unrepresented parties. Neither prosecutors nor defense counsel may discuss the matter with a represented victim without permission of the victim's counsel. Neither prosecutor nor defense counsel may give the unrepresented victim advice, other than the advice to obtain independent counsel and referrals or information as to how to do so.

BACKGROUND

3. The Ethics Advisory Opinion Committee (the "EAOC") has been approached by a representative of an association of lawyers engaged in the prosecution of domestic violence cases. The association submitted a list of questions specific to the handling of domestic violence cases. The EAOC chooses not to specifically respond to those questions as posed but rather reminds all lawyers of the tools available to assess proper professional conduct in a variety of settings.

Discussion

ANALYSIS

4. The Utah Rules of Professional Conduct apply to all lawyers regardless of specialty or specific case. The Utah Rules of Professional Conduct apply in difficult as well as easily recognized situations. Indeed, paragraph nine of the Preamble to the Utah Rules of Professional Conduct provides: "Within the framework of these Rules, however, many difficult issues of professional discretion can arise. Such issues must be resolved through the exercise of sensitive professional and moral judgment guided by the basic principles underlying the Rules."

5. Whether a person is or is not a client of a lawyer is a foundational question in the law of lawyering. See "The Law of Lawyering," Hazard, Hodes and Jarvis 2019 Supplement Section 2.7. The Utah Rules of Professional Conduct do not define the identity of the client. Rather, attorney-client relationships are established by other law governing contractual and other relationships. Nevertheless, "a client lawyer relationship arises when a person manifests an intention to receive legal services from a lawyer, and the lawyer then either agrees to provide the services or fails to negate consent where the prospective client has reasonably assumed that the relationship is under way." Id. The lawyer has the responsibility to clarify whom the lawyer represents and the scope of that representation.

6. Sometimes the determination of the client is not controversial. For example, in domestic violence questions, it is always clear that the prosecutor represents the government. Similarly, the defense attorney's client is the defendant, and only the defendant. Having identified the respective client of each lawyer, neither the prosecutor nor the defense lawyer may conduct herself in such a way as to give the impression, much less affirmatively tell the alleged victim, that she represents anyone other than her own client. Rule 1.7 of the Utah Rules of Professional Conduct is quite clear in regard to conflicts of that nature.

7. The alleged victim is not the client of the defense lawyer. Rule 1.7(a)(1) of the Utah Rules of Professional Conduct precludes concurrent representation of clients with conflicting interests. Defending a person accused of a crime while at the same time representing the person whom the government has labelled as the victim of the defendant's crime presents the kind of conflict to which Rule 1.7(a)(1) of the Utah Rules of Professional Conduct is squarely addressed.

8. Likewise, a prosecutor should make plain that she represents the state and not the "victim," as the interests of the state in prosecuting domestic abusers may not coincide with the interests and desires of the victim in any particular case. Where prosecutors' offices employ staff to act as victim liaisons, it is equally important that the liaisons similarly make plain that the prosecutor's office employs them and that they do not have solely the victim's interests in mind.

9. Having determined that the victim is the client of neither the defense lawyer nor the prosecutor, other Rules apply. For example, if the alleged victim is unrepresented, the provisions of Rule 4.3 of the Utah Rules of Professional Conduct apply equally to prosecutors and defense lawyers. Neither lawyer shall state or imply that the lawyer is disinterested. Because each lawyer knows or reasonably should know that the interests of the alleged victim are or have a reasonable possibility of being in conflict with the interests of either the government or the defendant, neither the defense lawyer nor the prosecutor should give legal advice to an unrepresented party (see Rule 4.3(a) of the Utah Rules of Professional Conduct), other than the advice to seek legal counsel. Regardless of the temptation to structure the case through proposals that the alleged victim testify or not testify, the duty of prosecutors and defense attorneys is to refrain from giving legal advice to the victim, whether or not the victim is represented. Thus, it would be improper for a defendant's lawyer to propose that an alleged victim decline to testify or not attend the trial in order that the matter be dismissed. Similarly, it would be improper for a prosecutor to give legal advice that would force or coerce a reluctant victim to testify. However, defense counsel or prosecutor may provide referrals for the victim to obtain counsel including referrals to the Utah Crime Victims Legal Clinic or other legal advice clinics.

10. If the alleged victim is represented by counsel, both prosecutors and defense lawyers must comply with Rule 4.2 of the Utah Rules of Professional Conduct which precludes communication about the subject of the representation with a person known to be represented without permission of that person's counsel. In accordance with Rule 4.2(c), limitations on the prosecutor's ability to speak with the represented party are not absolute.

11. The Utah Rules of Professional Conduct relating to representation of a client include Rule 1.1 (Competence) and Rule 1.3 (Diligence). Rule 1.1 and Rule 1.3 apply to all lawyers. In proper representation of a domestic violence defendant, the defense lawyer must learn of the evidence which will be presented against her client and properly evaluate the strength of the evidence and any possible mitigating circumstances. In some cases, this will require the lawyer to interview the alleged victim, if possible. Likewise, in exercising competence and diligence, the prosecutor or his representatives must do that which is necessary to be adequately prepared for trial, which may require an interview of the alleged victim. In performing those interviews both prosecutors and defense lawyers need to be cognizant of the rights of the alleged victim, as well as the risks associated with interviewing a complaining witness, e.g., subsequent claims of intimidation or suggestion of subornation of perjury.

CONCLUSION

12. Though difficulties may arise in the practice of law, all lawyers must comply with the Utah Rules of Professional Conduct. Both prosecutors and defense lawyers have equal duties to respect the rights of the alleged victim.

NOTES:

1. Some of the questions posed in the request require analysis of substantive law, a task not delegated to the EAOC. We only note that in domestic violence cases, like all lawyers, a lawyer has a duty of competence under Rule 1.1 of the Utah Rules of Professional Conduct.