From this thread on the TDCAA forums (for which the hat tip goes to Dallas criminal-defense lawyer Robert Guest. Robert is having computer problems, so he gave me the lead):
Disciplinary Rules interplay?
So here is a question that’s come up among lawyers and officers from other states on a listserve I’m on.Near as I can tell, it looks like SCOTUS has said that the police can
initiate contact with and take a run at talking to a suspect/defendant,
even if he is represented by counsel, so long as he clearly and
unequivocally waives his right to silence and counsel. Right?
I, probably like everyone else on this board, get asked pretty regularly
by officers to weigh in on whether they can take a run at interviewing
a suspect/defendant. And if the guy is known to be represented, the
standard answer is, of course, that he’s absolutely off limits (unless
he should happen to initiate the contact himself, but that’s a whole
‘nuther issue). Now, under Jackson, it seems that the standard answer
But, here’s where it seems to get tricky:
Disciplinary Rule 4.02 says that we cannot communicate or cause or encourage another to communicate with a person we know to be represented by counsel about the subject of that representation unless it is consented to by the representing lawyer or is “authorized by law”….
So how does that factor in? It seems to me that if we advise an officer that it’s now ok to take that run at that suspect that we know is represented, we might just be running afoul of 4.02, or does the “authorized by law” language kick in and permit it?
So if an officer approaches us for advise, would our safest bet just be to tell them that we cannot advise them what to do but direct them to Jackson?
Calling Chip, the Ethics Guru!
244 | Registered: 10-24-02
Ethics genius John Bradley thinks that anything not forbidden by the Constitution is authorized by law.
Civil lawyers, that means that you can talk to adverse parties who are represented by counsel (since the Constitution doesn’t forbid it, it must be authorized). Criminal defense lawyers, that means that you can talk to codefendants who are represented by counsel. Prosecutors, you too can talk to represented defendants. Any lawyer can send a non-lawyer to talk to any represented people. After all, in John’s world, if it isn’t explicitly forbidden, it’s authorized by law (I’m relieved, actually – I had suspected John of holding the view that anything not explicitly authorized is forbidden.). Rule 4.02(a) is a nullity.
Wrong. The Supreme Court doesn’t authorize the police to talk to represented people. It just doesn’t forbid it. If that doesn’t convince, Rule 4.02(a) says that a lawyer shall not encourage another to communicate about the subject of the representation with a person the lawyer knows to be represented, unless the lawyer is authorized by law to do so. (I’ll have to write soon about lawyers’ tendency to treat legal ethics as some kind of folkloric oral tradition, rather than than a set of published rules that they can read and understand themselves.) Even if the cops were now “authorized by law” to talk to represented people, prosecutors still aren’t “authorized by law” to encourage them to do so.
Prosecutors, John’s advice is worth less than you’ve paid for it. Read the opinion in Montejo v. Louisiana and read the rule for yourself.
If you advise a cop to talk to a defendant about a subject on which the defendant is represented by counsel, plan on getting a certified-mail letter from the State Bar of Texas, and plan on it not being friendly.