Can a prosecutor talk to an unrepresented criminal defendant about the case after charges are filed but before the first court appearance?

Plain-English summary

Opinion E-93-3 (1993) addressed whether a prosecutor may ethically discuss an unrepresented criminal defendant's case with the defendant after a formal criminal prosecution has been commenced by the filing and service of a summons and complaint, but before the first court appearance. The committee answered yes, while stressing that prosecutors must always remain mindful of their professional responsibilities under SCR 20:3.8 and SCR 20:4.3, the duties addressed in its earlier Formal Opinion E-92-6, which it directed prosecutors to consult in such situations.

The committee distinguished the constitutional doctrines from the ethics rules. It noted that case law treats custody as the trigger for a law enforcement officer's duty to give Miranda warnings, and that the Sixth Amendment right to counsel attaches at indictment or the filing of a formal complaint, citing Massiah v. United States and Maine v. Moulton. The committee observed that the filing of a complaint and issuance of a summons commences formal charges, but said it was not deciding whether a prosecutor is constitutionally or ethically required to give Miranda warnings in all contexts. The Rules of Professional Conduct, it explained, impose their own duties when a lawyer deals with unrepresented persons and with persons represented by counsel, under SCR 20:4.2 and 20:4.3.

Applying the rules, the committee described prudent practice: a prosecutor who has charged a defendant and is later contacted by that defendant wanting to "work out" a settlement should first determine whether the defendant is represented. If so, the interview may not proceed without counsel's consent. If the defendant is not represented and still wants to proceed, the prosecutor may ethically continue settlement discussions, and prudence suggests making notes to the file recording the discussions, the defendant's unrepresented status, and the defendant's wish to proceed on his or her own.

Currency note

This opinion was issued in 1993, before Wisconsin's July 1, 2007 adoption of the revised Rules of Professional Conduct (the state's Ethics 2000 update). The rules governing prosecutors and contact with unrepresented and represented persons (SCR 20:3.8, 20:4.3, and 20:4.2) have been revised since. 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: Could a prosecutor speak with an unrepresented defendant after charging but before the first appearance?

A: Yes. The committee concluded a prosecutor may discuss the case with an unrepresented defendant in that window, provided the prosecutor heeds the duties to unrepresented persons under SCR 20:3.8 and SCR 20:4.3.

Q: What if the defendant turns out to be represented?

A: Then the prosecutor may not proceed without counsel's consent. The committee concluded that under SCR 20:4.2 the interview may not continue if the defendant is represented, so prudent practice is to confirm representation first.

Q: Did the opinion require Miranda warnings?

A: No. The committee expressly declined to decide whether a prosecutor is constitutionally or ethically required to give Miranda warnings, treating that as outside the opinion.

Background and rules framework

The opinion interprets SCR 20:3.8 / Model Rule 3.8 (special responsibilities of a prosecutor), SCR 20:4.3 / Model Rule 4.3 (dealing with an unrepresented person), and SCR 20:4.2 / Model Rule 4.2 (communication with a person represented by counsel). The committee separated these ethics duties from the constitutional Miranda and Sixth Amendment doctrines and pointed prosecutors to its companion Formal Opinion E-92-6.

Citations and references

Rules of Professional Conduct:

• Wis. SCR 20:3.8 / Model Rule 3.8 (special responsibilities of a prosecutor)
• Wis. SCR 20:4.3 / Model Rule 4.3 (dealing with an unrepresented person)
• Wis. SCR 20:4.2 / Model Rule 4.2 (communication with a represented person)

Cases:

• Miranda v. Arizona, 384 U.S. 436 (1966) (custodial-interrogation warnings)
• Massiah v. United States, 377 U.S. 201 (1964) (Sixth Amendment right to counsel after formal charges)
• Maine v. Moulton, 474 U.S. 159 (1985) (counsel as the medium between the accused and the government)

Other opinions cited:

• Wis. Formal Op. E-92-6 (prosecutor duties to unrepresented and represented persons)

See also

• WI Ethics Op. E-09-02: Prosecutor Dealing With Unrepresented Persons
• WI Ethics Op. E-96-3: Prosecutor Contact With Represented Persons via Agency Staff
• WI Ethics Op. E-95-1: Communicating With a Represented Government Agency

Source

• Landing page: https://www.wisbar.org/formembers/ethics/pages/formal-opinions.aspx
• Original PDF: https://www.wisbar.org/formembers/ethics/Ethics%20Opinions/E-93-3.pdf