Can a prosecutor's office let its nonlawyer staff member run an unsupervised jail program where represented detainees discuss their cases?

Plain-English summary

A county prosecutor's office employed a legal secretary who began conducting an unsupervised Bible study in the county jail during non-work hours, controlling the content and selecting which female detainees could attend. The prosecutor's office understood that some detainees discussed the circumstances and conduct that led to their incarceration, and that the detainees had retained or appointed counsel. The inquirer asked whether the prosecuting attorney or the secretary's supervising attorney violates RPC 4.2, 5.3, or other rules by knowingly permitting a nonlawyer employee to have contact with persons represented by counsel in a criminal matter.

The committee concluded that RPC 4.2, 5.3, 1.7, and 3.8 are all potentially violated by the unsupervised Bible study run by a nonlawyer employee of the prosecuting attorney's office in a jail with represented detainees, unless notice is given to defense counsel and consent is given for the detainees' participation following that notice and after an opportunity for advice from the assigned or retained defense counsel. The committee noted that it does not address matters of substantive law.

Currency note

This opinion was issued in 2002, before the Washington State Bar Association's adoption of the 2006 revisions to the Rules of Professional Conduct. 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 Treat this page as historical context, not current guidance.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.

In practice

Under the Washington rules as they stood at the time of the opinion, the committee treated a nonlawyer prosecutor's-office employee's unsupervised contact with represented detainees, in a setting where they discussed their cases, as potentially implicating the no-contact rule (RPC 4.2), the duty to supervise nonlawyer assistants (RPC 5.3), conflicts of interest (RPC 1.7), and the special responsibilities of a prosecutor (RPC 3.8). The committee tied avoidance of those problems to giving defense counsel notice and obtaining the detainees' consent after notice and an opportunity for counsel's advice.

Common questions

Q: Can a prosecutor's nonlawyer staff member run a jail program where represented detainees talk about their cases?

A: The committee concluded that doing so unsupervised potentially violates RPC 4.2, 5.3, 1.7, and 3.8 unless defense counsel is notified and the detainees consent to participate after notice and an opportunity for advice from their counsel.

Q: Why does the supervising attorney's responsibility come into play?

A: The committee identified RPC 5.3 (responsibilities regarding nonlawyer assistants) among the rules potentially violated, framing the issue as the prosecuting attorney or the secretary's supervising attorney knowingly permitting the nonlawyer's contact with represented persons.

Q: What would make the program permissible?

A: The committee said the rules are potentially violated unless notice is given to defense counsel and the detainees consent to participate following that notice and after an opportunity for advice from their assigned or retained defense counsel.

Background and rules framework

The opinion applies Washington RPC 4.2 (communication with a represented person; corresponding to Model Rule 4.2), RPC 5.3 (responsibilities regarding nonlawyer assistants; corresponding to Model Rule 5.3), RPC 1.7 (conflict of interest; corresponding to Model Rule 1.7), and RPC 3.8 (special responsibilities of a prosecutor; corresponding to Model Rule 3.8). The committee framed the no-contact concern as one a lawyer cannot circumvent through a nonlawyer employee, and conditioned permissibility on notice to defense counsel and informed consent. The committee noted it does not address substantive law. The opinion reflects Washington's pre-2006 rule numbering.

Citations and references

Rules of Professional Conduct:

• Model Rule 4.2 / Washington RPC 4.2 (communication with a person represented by counsel)
• Model Rule 5.3 / Washington RPC 5.3 (responsibilities regarding nonlawyer assistants)
• Model Rule 1.7 / Washington RPC 1.7 (conflict of interest)
• Model Rule 3.8 / Washington RPC 3.8 (special responsibilities of a prosecutor)

See also

• WSBA Ethics Op. 1012: Imputed Disqualification From a Secretary's Adverse Confidences
• WSBA Ethics Op. 1135: Prosecutor Release-Dismissal and Civil Liability
• WSBA Ethics Op. 1000: Contact With an Opposing Party Represented by Counsel

Source

• Landing page: https://ao.wsba.org/print.aspx?ID=1233

Original opinion text

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

Advisory Opinion: 1988
Year Issued: 2002
RPC(s): RPCs 1.7, 3.8, 4.2, 5.3
Subject: Bible study in county jail by non-attorney employee of countys prosecutors office

A county prosecutor’s office employs a legal secretary who recently began to conduct a Bible study in the county jail during non-work hours. The Bible study takes place without any supervision. The secretary has control and selection of content and who among the female jail detainees is allowed to attend. The prosecuting attorney’s office understands that some of the women detainees discuss the circumstances and conduct that led to them being in jail. The detainees have attorneys, either retained or appointed.

The inquirer asks if the prosecuting attorney and/or the legal secretary’s supervising attorney is in violation of RPC 4.2, 5.3, and/or other rules by knowingly permitting a legal secretary to have contact with persons represented by legal counsel in a criminal matter?

The Rules of Professional Conduct Committee is of the opinion that RPCs 4.2, 5.3, 1.7, and 3.8 are all potentially violated by the unsupervised Bible study class run by a non-lawyer employee of the prosecuting attorney’s office in a jail with represented jail detainees unless notice is given to the defense counsel and consent is given for the detainees’ participation following that notice and after an opportunity for advice from the assigned or retained defense counsel.

It is also noted that the Rules of Professional Conduct Committee does not address matters of substantive law.