Action & Reaction: Virginia Altering Ethics Rules for Prosecutors

By changing constitutional law in Montejo, the federal supreme court fundamentally altered the realities of interrogations. In so doing, it left prosecutors in a precarious position. The generic ethical rule does not allow communication with a defendant once she has counsel. However, there are no longer any protections of the defendant until she announces that she will not talk without her lawyer present - irregardless of whether an attorney has been appointed/hired. Where does this leave the prosecutor? Is he disabled from doing what he can constitutionally by ethics obligations? What if an officer has heard about Montejo and asks if he can talk to a defendant who already has an attorney appointed? Are we supposed to mislead the officer as to what he's allowed to do because of the Bar's ethics rules?

The Virginia State Bar is stepping into the breach with a proposed change to the comment section of Rule 4.2: Communication With Persons Represented By Counsel

[5] In circumstances where applicable judicial precedent has approved investigative contacts in pre-indictment, noncustodial circumstances prior to attachment of the right to counsel, and they are not prohibited by any provision of the United States Constitution or the Virginia Constitution, they should be considered to be authorized by law within the meaning of the Rule. Similarly, communications in civil matters may be considered authorized by law if they have been approved by judicial precedent. This rule does not prohibit a lawyer from providing advice regarding the legality of an interrogation or the legality of other investigative conduct.

The second change to the comment is unambiguous. A prosecutor can advise officers as to the current limits of the law.

However, the first change is more problematic. It's very ambiguous. "Prior to the attachment of right to counsel" leaves open the question of when the right to counsel attaches. Per Montejo it would seem to attach at the moment the defendant asserts her right to counsel during questioning, whether or not counsel had previously been hired/appointed. However, during the initial pre-trial hearing the judge is supposed to determine what the defendant is going to do about an attorney, and appoint counsel to anyone who is indigent. A not insignificant argument can be made that this is when the right attaches (assuming the defendant has not demanded counsel during earlier questioning). Personally, I wouldn't mind the second interpretation too much. Since I can't be a witness, I really don't need to be talking to the defendant anyway. Still, the Bar should tighten that language up some.