Ezel / Ethics Opinions / WISBAR
WISBAR 2009

What are a prosecutor's ethical duties when dealing with an unrepresented person in Wisconsin?

Short answer: The opinion concludes that under the amended SCR 20:3.8 a prosecutor must identify their role and interest to an unrepresented person, must tell a person with a right to counsel how to obtain one and allow a reasonable chance to do so, and may negotiate a resolution (including a plea) but may not, except for municipal prosecutors, give the person legal advice or help complete waiver forms. Municipal prosecutors' apparent exemption is narrowed by conflict and other rules.

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This page answers the general question as of 2009. Ezel answers yours: whether it's allowed on your facts, under the current rules of professional conduct in your state, with citations.

Currency note: this opinion is from 2009
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Plain-English summary

Opinion E-09-02 addresses a prosecutor's duties to unrepresented persons under SCR 20:3.8, which the Wisconsin Supreme Court significantly amended effective July 1, 2007. The committee starts with the new definition of "prosecutor" in SCR 20:1.0(j), which is broader than the traditional criminal-case meaning: it includes government lawyers in delinquency, child-protection, and termination-of-parental-rights proceedings, and municipal prosecutors. Because Wisconsin's SCR 20:3.8 differs substantially from ABA Model Rule 3.8, the committee bases its reading on the rule's own language.

The amended rule sets out three duties. Under SCR 20:3.8(b), when communicating with an unrepresented person in an investigation or proceeding, a prosecutor must inform the person of the prosecutor's role and interest, which the committee reads as identifying oneself as a prosecutor, naming the employing entity, and disclosing involvement in the matter; it does not require revealing the target of an investigation. Under SCR 20:3.8(c), when the unrepresented person has a statutory or constitutional right to counsel, the prosecutor must inform the person of that right and how to obtain counsel and give a reasonable opportunity to do so; the committee notes this can arise before formal charges and applies to certain non-criminal proceedings such as Chapter 51 commitments and TPR cases.

SCR 20:3.8(d) substantially expanded a prosecutor's ability to negotiate with unrepresented defendants, now plainly allowing plea discussions and resolutions that waive rights, which the former rule had been read to forbid. But the same subsection bars a prosecutor, other than a municipal prosecutor, from giving legal advice (such as whether to obtain counsel, whether to accept an offer, or how the tribunal is likely to rule) and from helping complete guilty-plea, preliminary-hearing-waiver, or jury-trial-waiver forms. The committee draws a line between permissible discussion of options and prohibited advice on which option to take, and notes the prosecutor must still comply with SCR 20:4.1(a)(1)'s ban on false statements of fact or law. As for the municipal-prosecutor exemption, the committee concludes it does not trump the other rules: a municipal prosecutor who advises an unrepresented adversary risks an unwaivable conflict under SCR 20:1.7 and could inadvertently form a lawyer-client relationship, so the exemption is effectively narrowed to general, process-oriented assistance. Municipal prosecutors remain bound by SCR 20:4.3's duty to disclose their role.

In practice

Under this opinion, conduct matching its fact pattern is treated as follows. As the rule stood at the time of the opinion (after the 2007 amendment), a Wisconsin prosecutor had to identify their role and interest to unrepresented persons, inform those with a right to counsel how to obtain one, and could negotiate pleas and resolutions, but, outside the municipal-court context, could not give legal advice or help complete waiver forms. The committee concludes that municipal prosecutors, despite the text of SCR 20:3.8(d), are still constrained by the conflict rules and SCR 20:4.3 and should limit assistance to general procedural matters.

Common questions

Q: What must a prosecutor tell an unrepresented person at first contact?

A: Their role and interest. The committee concludes that SCR 20:3.8(b) requires the prosecutor to identify themselves as a prosecutor, name the employing entity, and disclose involvement in the matter, but not to reveal the target of an investigation.

Q: Can a prosecutor negotiate a plea with an unrepresented defendant?

A: Yes. The committee concludes that SCR 20:3.8(d), as amended in 2007, plainly allows a prosecutor to discuss settlement and negotiate a resolution that waives rights, reversing the former rule's practical bar on such negotiations.

Q: Can a prosecutor advise an unrepresented person whether to accept a deal?

A: No (except municipal prosecutors, with limits). The committee concludes that SCR 20:3.8(d)(1)-(2) bars a non-municipal prosecutor from giving legal advice or helping complete waiver forms, drawing a line between discussing options and advising which to choose.

Q: Are municipal prosecutors really free to give legal advice?

A: No. The committee concludes that although SCR 20:3.8(d) appears to exempt them, the conflict rules (SCR 20:1.7) and SCR 20:4.3 narrow the exemption, so municipal prosecutors should limit help to general procedural assistance and must still disclose their role.

Background and rules framework

The opinion interprets SCR 20:3.8 / Model Rule 3.8 (special responsibilities of a prosecutor), as amended effective July 1, 2007, alongside the definition of "prosecutor" in SCR 20:1.0(j). It also applies SCR 20:4.3 / Model Rule 4.3 (dealing with unrepresented persons), SCR 20:1.7 / Model Rule 1.7 (concurrent conflicts), and SCR 20:4.1(a)(1) / Model Rule 4.1 (truthfulness to others). It supersedes and withdraws E-92-6.

Citations and references

Rules of Professional Conduct:

  • Wis. SCR 20:3.8(b), (c), (d) / Model Rule 3.8 (prosecutor's special responsibilities)
  • Wis. SCR 20:4.3 / Model Rule 4.3 (unrepresented persons)
  • Wis. SCR 20:1.7 / Model Rule 1.7 (concurrent conflicts)
  • Wis. SCR 20:4.1(a)(1) / Model Rule 4.1 (truthfulness in statements to others)
  • Wis. SCR 20:1.0(j) (definition of "prosecutor")

Cases:

  • United States v. Acosta, 111 F. Supp. 2d 1082 (E.D. Wis. 2000), duty to advise of right to counsel can arise before indictment
  • Togstad v. Vesely, Otto, Miller & Keefe, 291 N.W.2d 686 (Minn. 1980), duty of competence can exist without a formal lawyer-client relationship

Other opinions cited:

  • Wisconsin Ethics Op. E-92-6 (withdrawn by this opinion)

See also

Source

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