State Bar of Wisconsin

New ethics opinion clarifies prosecutors’ duties to pro se parties

April 6, 2009 – Rules of Professional Conduct revised in 2007 have prompted a new formal ethics opinion from the Professional Ethics Committee regarding the obligations of a prosecutor dealing with an unrepresented person under SCR 20:3.8 and 4.3.

The opinion, E-09-02, interprets the amended SCR 20:3.8 as broadening a prosecutor’s duties in three ways.

• No longer just unrepresented defendants. The Professional Ethics Committee notes the SCR 20:3.8 (b) directive to prosecutors to disclose their role and interest in a matter is not limited to the target of an investigation or an individual already indicted. Rather, the duty applies to fact witnesses or any other unrepresented individual whether or not that person may face criminal charges. The duty arises when contacts with an unrepresented person are made “in the context of an investigation or proceeding.”
  
  The rule and its Comment did not specify what information a prosecutor should disclose. Accordingly, the committee advises that the duty is satisfied when a prosecutor states that she is a prosecutor; identifies the local, state, or federal entity for which she works; and discloses that she is engaged in the investigation or prosecution of a matter. A prosecutor does not have to identify the specific subject of the investigation or prosecution, the committee said.
  
• Triggered before the filing of formal charges. The committee observed a crucial phrase substitution in SCR 20:3.8 (c) that instructs prosecutors to inform an unrepresented person of the right to counsel and the procedures to obtain counsel as well as giving a reasonable opportunity to acquire counsel. Whereas the old rule concerned the prosecutor’s dealings with an unrepresented “accused,” the revised rule speaks of “an unrepresented person who has a statutory or constitutional right to counsel.” “This change emphasizes that the prosecutor’s responsibilities under subsection (c) may arise before the filing of formal charges,” the committee wrote.
  
  The committee further noted that the new wording extends the reach of the rule to persons who are the subject of noncriminal proceedings (e.g., mental commitments or termination of parental rights) but have a right to counsel.
  
• Clears way to plea negotiations. SCR 20:3.8 (d) formerly barred a prosecutor from seeking a waiver of important pretrial rights from an unrepresented person, leading many prosecutors to believe they could not negotiate a plea implicating the right to a jury trial with a pro se defendant -- even in a misdemeanor case. The amended SCR 20:3.8 (d) explicitly states a prosecutor may discuss a matter, providing information regarding settlement and even negotiate a resolution that includes waiver of constitutional and statutory rights.
  
  But a prosecutor is prohibited from otherwise providing legal advice or assisting with completion of forms for a guilty plea, waiver of a preliminary hearing, or waiver of a jury trial. To clarify the line between “discussion” and “advice,” the committee explains that a prosecutor may explain the legal consequences of a particular plea agreement but cannot advise whether the person should take it.
  
  The committee stressed that when operating under the new rule, a prosecutor should remain mindful of SCR 20:4.1(a)(1), the obligation to avoid making false statements of material fact or law to third persons.

Municipal prosecutors

The committee noted that the revised rules now supply a definition of “prosecutor” to include municipal prosecutors who do not prosecute criminal cases. However, SCR 20:3.8(d) explicitly exempts municipal prosecutors from its prohibitions against advising unrepresented persons or assisting them with forms. Further, the Comment to SCR 20:4.3 implies the requirements of that rule do not apply to municipal prosecutors if they conflict with SCR 20:3.8 (d).

But municipal attorneys remain constrained by other rules, the committee found. As the committee explains, an unrepresented adversary who receives legal advice from a municipal prosecutor is entitled to rely on that advice. Consistent with SCR 20:1.7 governing representations involving concurrent conflicts of interest, municipal attorneys must limit their advice so as not to create a material limitation on their ability to represent their municipal clients.

Proper assistance to an unrepresented person should be more general in nature, the committee advised. Assistance with forms or explanation of procedures and typical outcomes in certain types of cases would likely avoid a conflict of interest. By contrast, the committee discouraged advice pertaining to the viability of potential defenses or efforts to dissuade a person from contesting a matter.

Advising or assisting an unrepresented adversary also risks unintentionally establishing a lawyer-client relationship, the committee said. A party receiving assistance from a municipal prosecutor could be legitimately confused by the prosecutor’s role, meeting the test for formation of a lawyer-client relationship. SCR 20:1.7 forbids an attorney from representing an adversary in a matter pending before a tribunal. To avoid unintended lawyer-client relationships, the committee advised municipal attorneys scrupulously fulfill their obligation under SCR 20:4.3 to always disclose their partisan role in a matter to an unrepresented person.

The committee offered municipal prosecutors two suggestions. First, the municipal prosecutor should simply ask if the person has an attorney. If the answer is yes, the prosecutor knows to work through that person’s counsel. Second, the prosecutor should consider having a third person present at the meeting with an unrepresented person to guard against possible future allegations of unethical conduct. Also, this could insulate the prosecutor from possible disqualification under Rule 3.7, the advocate-witness rule.

• Read E-09-02: Wisconsin Ethics Opinion E-09-02: Obligations of a prosecutor dealing with unrepresetned persons
  
• Recent opinion E-09-01: Lawyer's responsibilities when a client gives a third party a "lien" on settlement proceeds

By Alex De Grand, Legal Writer, State Bar of Wisconsin