“no-contact” rule: Helping or hurting criminal defandants in plea negotiations?
NTRODUCTION
The rule against communication with adverse parties is fairly clear-such communication is not allowed. In the criminal context this rule is generally thought to protect defendants from the coercive power of the government. The rationale usually referred to for disallowing communication between prosecutors and defendants is that the government, through the prosecutor, is interested in securing convictions and will therefore not give defendants objective information, nor will prosecutors protect the interests of defendants whose liberty is at stake. Model Rule 4.2 operates to require prosecutors to obtain consent from a defendant’s attorney if communication with the defendant is to be allowed. Requiring the defendant’s lawyer to oversee communication between a defendant and a prosecutor safeguards the defendant’s rights in an adversarial system.
The above is the simplest understanding of a rule that, on its face, seems clear-cut and rational. In order to understand the evolution of this rule and the controversies that have surrounded federal prosecutors, it is necessary to examine the dynamics affecting criminal prosecutions. This Note will specifically examine plea negotiations and the no-contact rule in the criminal context.
While the hope is that defense attorneys will protect their clients’ rights, sometimes prosecutors may be in a better position to aid the defendant in making a fully informed decision. Prosecutors often know more about the aims of the government and have more information about what evidence the government has available to pursue a conviction. Further, there can be pressures on defense attorneys that stem from the need to maintain a fruitful relationship with prosecutors and judges, and these pressures may effect how defense attorneys advise individual defendants. Although intervention by prosecutors, through communication with defendants, might actually facilitate more efficient and potentially more fair outcomes for defendants, the idea of allowing this type of communication is generally frowned upon.
This Note will outline the history of Model Rule 4.2 in the criminal context, as well as the history of Model Rule 4.2 as it applies to controversies surrounding federal prosecutors. In addition, a general outline of significant court rulings regarding communication between adverse parties will be provided. This Note will then give an overview of different opinions regarding the proper scope and application of Model Rule 4.2, primarily as it applies to plea negotiations.
I. HISTORY OF MODEL RULE 4.2 IN THE CRIMINAL CONTEXT
The idea that an attorney should not communicate directly with an adverse party is well established in our criminal justice system. Prohibition of communication between prosecutors and defendants is thought to protect several important interests including: maintaining the attorney-client privilege, protecting defendants from manipulation by trained lawyers, encouraging the ability of defense attorney’s to monitor the status of their clients’ case, counseling defendants to not disclose information that is against their interests, and promoting the resolution of legal issues through discussion between trained legal professionals.1
Initially, the no-contact rule was suggested as a rule of courtesy.2 An early treatise on the subject merely suggested that contact should not be made with an opponent’s client unless the opposing counsel consented to that communication.3 Discouraging communication between adverse parties has since been incorporated into every formal body of ethical rules. The Canons of Professional Ethics and DR 7-104(A)(1) of the ABA Model Code of Professional Responsibility, which both preceded the Model Rules of Professional Conduct Rule 4.2, both clearly established that communication between adverse parties was not permitted.4 The current rule governing communication between adverse parties, which has been adopted in some form everywhere in the United States, is based on the Model Rule of Professional Conduct Rule 4.2: “[i]n representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized by the law to do so.”5 Generally, the position of the judiciary on communication between adverse parties is similar to that of Model Rule 4.2.(6)
II. HISTORY OF MODEL RULE 4.2 AS IT APPLIES TO CONTROVERSIES SURROUNDING FEDERAL PROSECUTORS
The application of Model Rule 4.2 to federal prosecutors has been steeped in controversy. Advocates of Rule 4.2 believe that it should apply to all prosecutors, while the Justice Department instituted several different policies attempting to excuse federal prosecutors from compliance with the no-contact rule. In 1980, the Department of Justice took the position that Rule 4.2 did not apply to federal prosecutors because federal prosecutors were governed only by the Constitution and federal statutes, and were not subject state ethical rules.7 This position followed a memorandum issued during the Carter Administration, which asserted that federal attorneys should be exempt from state ethical rules.8 Until 1988 and the decision of United States v. Hammond, this was the policy adhered to by federal prosecutors.9 In Hammond, a federal prosecutor knew that a suspect was represented by counsel, but nevertheless used an associate of the suspect as an informant.10 This informant contacted the suspect and recorded conversations that were later used as evidence against the suspect. The Second Circuit held that this use of an informant, when the prosecutor knew that the suspect was represented by counsel, was a violation of the no-contact rule.11 This ruling was the first resistance to the Justice Department’s policy of exempting federal prosecutors from compliance with state ethical rules.