Can a lawyer agree in a plea bargain that a subpoenaed officer will not appear at a related hearing?

Plain-English summary

Opinion 99-06 addressed a DUI practice in which, after striking a plea bargain on the criminal charge, the defense lawyer or the prosecutor would contact the investigating police officer and seek the officer's concurrence not to respond to a subpoena issued by the Driver License Division (DLD) for the related license-revocation hearing. With the officer absent, no evidence would be presented and the administrative action would be dismissed, sparing the defendant's license. The Committee concluded this conduct is not permitted.

The opinion held the arrangement violates Rule 3.4(a), which bars a lawyer from unlawfully obstructing another party's access to evidence, reasoning (with an ABA annotation) that procuring the absence of a witness obstructs evidence. It also found a violation of Rule 8.4: inducing an officer to ignore a lawfully issued subpoena is conduct prejudicial to the administration of justice under 8.4(d), and is a criminal act under Utah Code Ann. section 76-8-508 (tampering with a witness) that ordinarily reflects adversely on a lawyer's honesty, trustworthiness, or fitness under 8.4(b).

Because the practice had apparently been common and its ethical problems may not have been fully appreciated, the Committee did not recommend disciplinary action for past conduct, but said any future conduct of this type would, in its view, violate Rule 8.4. The opinion pointed to a permissible alternative: coordinating the State's criminal and administrative arms, so that the DLD itself agrees to dismiss the revocation proceeding as part of the overall resolution, rather than asking an officer to disregard a subpoena.

Currency note

This opinion was issued in 1999, before the Utah State Bar's adoption of the 2005 revisions to the Rules of Professional Conduct (the Ethics 2000-based amendments approved by the Utah Supreme Court on September 29, 2005). 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 Treat this page as historical context, not current guidance.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 or defense lawyer ask a subpoenaed officer not to show up as part of a plea deal?

A: No. The opinion concluded that seeking an investigating officer's agreement not to respond to a lawfully issued subpoena violates Rule 3.4(a) and Rule 8.4.

Q: Why did the Committee treat this as a criminal act and not just an ethics problem?

A: It found the conduct fits Utah Code Ann. section 76-8-508 (tampering with a witness), which made inducing an officer to disregard a subpoena a third-degree felony, and Rule 8.4(b) treats such a criminal act as misconduct when it reflects on fitness to practice.

Q: Did the opinion suggest any lawful way to reach the same result?

A: Yes. It said the State could coordinate its criminal and administrative arms so the Driver License Division itself agrees to dismiss the revocation proceeding, rather than asking an officer to ignore a subpoena.

Background and rules framework

The opinion interpreted Utah Rule of Professional Conduct 3.4(a) (fairness to opposing party; not unlawfully obstructing access to evidence) and Rule 8.4 (misconduct), specifically 8.4(b) (criminal acts reflecting on fitness) and 8.4(d) (conduct prejudicial to the administration of justice). It connected the rule violations to Utah Code Ann. section 76-8-508, the witness-tampering statute. These rules correspond to ABA Model Rules 3.4 and 8.4.

Citations and references

Rules of Professional Conduct:

• MR 3.4 / Utah RPC 3.4(a) (obstructing access to evidence)
• MR 8.4 / Utah RPC 8.4(b), 8.4(d) (criminal acts; administration of justice)

Statutes:

• Utah Code Ann. section 76-8-508 (1998) (tampering with a witness)

Other opinions cited:

• Annotated Model Rules of Professional Conduct (ABA 3d ed. 1996): procuring a witness's absence as obstruction under Rule 3.4(a)

See also

• Alaska Ethics Op. 93-2: Paying Witnesses for Testimony
• ABA Formal Op. 508: Ethics of Witness Preparation

Source

• Landing page: https://www.utahbar.org/ethics-opinions/
• Original PDF: https://www.utahbar.org/wp-content/uploads/2022/12/1999-06.pdf

Original opinion text

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

Utah Ethics Opinions A person is guilty of a third degree felony if, believing that
an official proceeding or investigation is pending or about
1999. to be instituted, he attempts to induce or otherwise cause a
person to . . . (b) withhold any testimony, information,
99-06. USB EAOC Opinion No. 99-06
document, item; (c) elude legal process summoning him to
provide evidence; or (d) absent himself from any
Utah State Bar
proceeding or investigation to which he has been
summoned. (fn2)
Ethics Advisory Opinion Committee
On the facts related to the Committee in this request, a
Opinion No. 99-06
major element of the overall plea-bargain arrangement is
Approved August 27, 1999 the agreement that the subpoenaed police officer will not
testify or, at least, will be asked to concur with the "deal"
Issue: As a part of a criminal plea bargain agreement in a and not respond to the DLD subpoena. In the process of
DUI case, may either the prosecuting attorney or the striking such a plea bargain on the DUI charge, if either the
defense lawyer seek the concurrence of the investigating defense lawyer or the prosecuting attorney has induced (or
police officer not to respond to a subpoena lawfully issued attempted to induce) the police officer not to respond to a
by the Utah Driver License Division in connection with the validly issued subpoena to appear at the DLD hearing, that
related driver-license revocation hearing, a state lawyer appears to be in violation of Utah law.
administrative proceeding?
Rule 8.4 of the Utah Rules of Professional Conduct
Opinion: No. Such conduct violates Rule 3.4(a) and 8.4 of specifies when a violation of the law constitutes an ethical
the Utah Rules of Professional Conduct. transgression: "It is professional misconduct for a lawyer to
. . . [c]ommit a criminal act that reflects adversely on the
Facts: In cases involving operation of a motor vehicle lawyer's honesty, trustworthiness, or fitness as a lawyer in
while under the influence of alcohol ("DUI"), two actions other respects" (fn3) or to "engage in conduct that is
are initiated. The first is the criminal DUI action. The prejudicial to the administration of justice." (fn4)
second is an administrative hearing before the Driver
License Division of the Utah Department of Public Safety Accordingly, we find that a lawyer who encourages or
("DLD") to consider whether to revoke or suspend the influences an investigating officer to ignore or fail to
defendant's driver license (the "DLD hearing"). respond to a lawfully issued subpoena violates Rule 8.4 on
two counts: (1) To encourage a witness who has been
In connection with the DLD hearing, the investigating subpoenaed not to appear at a DLD hearing is to interfere
police officer is served with a subpoena to appear at that with, and be prejudicial to, the administration of justice. (2)
hearing. Before the DLD hearing takes place, the Further, to do so is a criminal act under Utah Code Ann. §
defendant's lawyer and the prosecuting attorney (fn1) agree 76-8-508 and one that may reflect directly on the lawyer's
to resolve the criminal DUI action. As a part of the regard and respect for the legal system that he serves.
plea-bargain discussion or after the agreement is reached, Engaging in an arrangement that has the ultimate effect of
but before the DLD hearing, either the defendant's lawyer inducing a witness to ignore or fail to honor a subpoena
or the prosecuting attorney contacts the investigating officer would ordinarily reflect adversely on the lawyer's honesty,
to indicate that (1) a compromise or a "deal" has been trustworthiness or fitness as a lawyer. However, it appears
worked out concerning the charge against the defendant, that this practice has occurred frequently over time,
and (2) a part of the deal is that the police officer will not apparently in an attempt to expedite the judicial process.
appear at the DLD hearing. Notwithstanding the issued Because the ethical issues may not have been fully
subpoena, non-appearance forecloses the presentation of appreciated in the past, we do not recommend that any
any evidence against the defendant at the DLD hearing and action be initiated by the Office of Professional Conduct in
is tantamount to "saving" the defendant's license from being connection with past actions. However, any future action of
suspended or revoked. As a result of the investigating this type would, in the Committee's view, be a violation of
officer's non-appearance at the DLD hearing, the Rule 8.4.
administrative action is dismissed, and no action is taken
relating the defendant's driver's license. In addition, this arrangement violates Utah Rule of
Professional Conduct 3.4(a): "A lawyer shall not . . .
Analysis: Section 76-8-508 of the Utah Code provides: unlawfully obstruct another party's access to evidence or
unlawfully alter, destroy a document or other material

Page 2

having potential evidentiary value." An annotation to the 3.4(a)8.4
ABA Model Rules of Professional Conduct concludes that
"[p]rocuring the absence of a witness would . . . constitute
the obstruction of evidence in violation of Rule 3.4(a)."
(fn5)
The fact that this practice may have become commonplace,
ostensibly in the pursuit of efficient processing of "routine"
DUI cases, does not, of course, relieve the lawyers involved
from compliance with the Rules of Professional Conduct. If
compliance with the rules produces fewer plea bargains and
more trials and administrative hearings, the state court
system or the state legislature may wish to fashion a
remedy. It is not for the lawyers to make such judgments.
Our Opinion will not, as some might claim, cause the
wheels of practical justice to slow to a crawl. An ethically
permissible way to proceed is to engage directly both arms
of the State's law-enforcement system-criminal and
administrative-by involving the appropriate personnel of the
DLD. If the State's "deal" is that the defendant will plead
guilty to a specified criminal charge in exchange for
preservation of the defendant's license and dismissal of the
revocation proceeding, then let the State of Utah, through
the coordination of its criminal and administrative arms,
effect such a result. It should not be necessary to bend the
ethical rules or to put law-enforcement officers in the
position of purposefully failing to respond to a lawfully
issued subpoena from an agency of the State of Utah.
Footnotes

1. As related to the Committee, this agreement may not
   even involve a prosecuting attorney, but constitutes an
   arrangement worked out between the defense lawyer and
   the police officer. As we have not been provided any facts
   about the nature of the communications that may have taken
   place before the plea-bargain arrangement has been worked
   out, we do not examine the ethical considerations of the
   bargaining process.
2. Utah Code Ann. § 76-8-508(1) (1998).
3. Utah Rules of Professional Conduct 8.4(b).
4. Id. 8.4(d).
5. Annotated Model Rules of Professional Conduct 328
   (ABA 3d ed. 1996), citing Barnhill v. United States, No.
   589-286, 1992 WL 453880 (N.D. Ill. April 8, 1992)
   (government lawyer counseled witness not to appear). See
   also Charles W. Wolfram, Modern Legal Ethics, 646 &
   n.80 (Hornbook Series 1986).
   Rules Cited: