Untitled California Attorney General Opinion ( 1992 )

TO BE PUBLISHED IN THE OFFICIAL REPORTS
OFFICE OF THE ATTORNEY GENERAL
State of California
DANIEL E. LUNGREN
Attorney General
______________________________________
OPINION :
: No. 91-1205
of :
: OCTOBER 8, 1992
DANIEL E. LUNGREN :
Attorney General :
:
ANTHONY S. DA VIGO :
Deputy Attorney General :
:
______________________________________________________________________________
THE HONORABLE GARY T. YANCEY, DISTRICT ATTORNEY, COUNTY OF
CONTRA COSTA, has requested an opinion on the following question:
During the investigative phase of a criminal or civil law enforcement proceeding,
does Rule 2-100 of the California Rules of Professional Conduct prohibit a public prosecutor, or an
investigator under the direction of a public prosecutor, from communicating with a person known
to be represented by counsel, concerning the subject of the representation, without the consent of
such counsel?
CONCLUSION
During the investigative phase of a criminal or civil law enforcement proceeding,
Rule 2-100 of the California Rules of Professional Conduct does not prohibit a public prosecutor,
or an investigator under the direction of a public prosecutor, from communicating with a person
known to be represented by counsel, concerning the subject of the representation, without the
consent of such counsel.
ANALYSIS
In order to protect the public and to promote respect for and confidence in the legal
profession, the Board of Governors of the State Bar of California, with the approval of the Supreme
Court, is authorized to formulate and enforce rules of professional conduct. (Bus. & Prof. Code, §
6076; Rules Prof. Conduct, Rule 1-100.)1 The rules are binding upon all members of the State Bar,
including public prosecutors
1
All references hereafter to the Business and Professions Code are by section number only; all
references hereafter to the Rules of Professional Conduct are by rule number only.
1. 91-1205
(§ 6077; Dix v. Superior Court (1991) 53 Cal.3d 442, 452; Taliaferro v. Locke (1960) 182
Cal.App.2d 752, 756),2 and apply in civil and criminal cases alike (Yorn v. Superior Court (1979)
90 Cal.App.3d 669, 675; Uhl v. Municipal Court (1974) 37 Cal.App.3d 526, 535-536).
The focus of this opinion is upon Rule 2-100. It provides as follows:
"(A) While representing a client, a member shall not communicate directly
or indirectly about the subject of the representation with a party the member knows
to be represented by another lawyer in the matter, unless the member has the consent
of the other lawyer.
"(B) For purposes of this rule, a ``party' includes:
"(1) An officer, director, or managing agent of a corporation or association,
and a partner or managing agent of a partnership; or
"(2) An association member or an employee of an association, corporation,
or partnership, if the subject of the communication is any act or omission of such
person in connection with the matter which may be binding upon or imputed to the
organization for purposes of civil or criminal liability or whose statement may
constitute an admission on the part of the organization.
"(C) This rule shall not prohibit:
"(1) Communications with a public officer, board, committee, or body;
"(2) Communications initiated by a party seeking advice or representation
from an independent lawyer of the party's choice; or
"(3) Communications otherwise authorized by law."
The issue presented for resolution is whether a public prosecutor, or an investigator under the
direction of a public prosecutor,3 is "otherwise authorized by law" within the meaning of
subparagraph (C)(3), to communicate, during the course of a criminal or civil law enforcement
investigation, with a person the prosecutor knows to be represented by another lawyer in the matter,
without the consent of the other lawyer. We conclude that the prosecutor would be so authorized
by law.4
2
Every person admitted and licensed to practice law in California is a member of the State Bar.
(Cal. Const., art. VI, § 9; § 6002; 73 Ops.Cal.Atty.Gen. 172, 174 (1990).)
3
Rule 2-100, to the extent that it applies to a prosecutor who communicates "directly or
indirectly" with a party, would clearly extend to an investigator acting as the alter ego of the
prosecutor. (Cf. United States v. Jamil (2nd Cir. 1983) 707 F.2d 638, 645; United States v. Ryans
(10th Cir. 1990) 903 F.2d 731, 735.) Ordinarily, the ethical canons of the legal profession do not
apply to an investigator acting independently of counsel. (People v. Dickson (1985) 167 Cal.App.3d
1047, 1057.)
4
Rule 1-100 also states: ". . . Nothing in these rules shall be deemed to create, augment, diminish,
or eliminate any substantive legal duty of lawyers . . . ."
2. 91-1205
We first note that in the State Bar's request for approval of Rule 2-100 by the
Supreme Court in 1987, the Board of Governors commented (Office of Prof. Standards, "Request
that the Supreme Court of California approve amendments to the Rules of Professional Conduct of
the State Bar of California, and Memorandum and Supporting Documents in Explanation" (Dec.
1987), p. 26) as follows:
"Subparagraph (C)(3) is new and is intended to make clear that where a
statutory scheme or case law exists regarding communication with a represented
party with respect to the subject matter of the representation, the statute or case
overrides the rule."
The predecessor to Rule 2-100, former Rule 7-103, provided only that:
"A member of the State Bar shall not communicate directly or indirectly with
a party whom he knows to be represented by counsel upon a subject of controversy,
without the express consent of such counsel. This rule shall not apply to
communications with a public officer, board, committee or body."
Former Rule 7-103 was characterized by the Supreme Court as "necessary to the preservation of the
attorney-client relationship . . ." (Abeles v. State Bar (1973) 9 Cal.3d 603, 609), and as having been
"designed to permit an attorney to function adequately in his proper role and to prevent the opposing
attorney from impeding his performance in such role" (Mitton v. State Bar (1969) 71 Cal.2d 525,
534, citing former Rule 12). Further, a State Bar ethics opinion construed the former rule as
applying to a district attorney who knew that the defendant was represented by counsel even when
no formal action had been filed. Specifically, in People v. Sharp (1983) 150 Cal.App.3d 13, 18, the
court noted:
". . . In a formal ethics opinion, No. 1979-49, the Standing Committee on
Professional Responsibility and Conduct of the State Bar construed rule 7-103 in a
situation analogous to the one at hand. They concluded that a district attorney may
not communicate with a criminal defendant he knows to be represented by counsel,
even if that communication is limited to an inquiry to conduct for which the
defendant has not been charged. Ethics opinions are advisory only and obviously not
binding on the courts, but this one exemplifies a practical application of the rule.
Because a prosecutor's position is unique - he represents authority and the discretion
to make decisions affecting the defendant's pending case - his contact carries an
implication of leniency for cooperative defendants or harsher treatment for
uncooperative. Such contact intrudes upon the function of defense counsel and
impedes his or her ability to negotiate a settlement and properly represent the client,
whose interests the rule is designed to protect."
However, with the adoption of Rule 2-100, including its subparagraph(C)(3), we believe that a
different analysis is now required.
3. 91-1205
Published in conjunction with the rules of professional conduct are "discussions"
relating to the interpretation and application of certain of the rules.5 In conjunction with Rule 2-100,
the published comments describe the new "law enforcement" exception as follows:
"Rule 2-100 is intended to control communications between a member and
persons the member knows to be represented by counsel unless a statutory scheme
or case law will override the rule. There are a number of express statutory schemes
which authorize communications between a member and person who would
otherwise be subject to this rule. These statutes protect a variety of other rights such
as the right of employees to organize and to engage in collective bargaining,
employee health and safety, or equal employment opportunity. Other applicable law
also includes the authority of government prosecutors and investigators to conduct
criminal investigations, as limited by the relevant decisional law." (Emphasis
added.)
Public prosecutors are frequently involved in the conduct of investigations, including
the creation of investigative plans, the supervision of investigative personnel, the execution of search
warrants, as well as the interview of witnesses. The investigation of criminal and criminal-related
conduct constitutes an inherent aspect of prosecution which is clearly authorized. (Triple A Machine
Shop, Inc. v. State of California (1989) 213 Cal.App.3d 131, 144-145; People v. Superior Court
(Aquino) (1988) 201 Cal.App.3d 1346, 1349-1350; Taliaferro v. City of San Pablo (1960) 187
Cal.App.2d 153, 154.) In Hicks v. Board of Supervisors (1977) 69 Cal.App.3d 228, 241, for
example, the court stated:
"Investigation and the gathering of evidence relating to criminal offenses is
a responsibility which is inseparable from the district attorney's prosecutorial
function. That the district attorney is charged with the duty of investigating as well
as prosecuting criminal activity has been recognized by an unbroken line of
California cases. In Cunning v. County of Humboldt [204 Cal. 31], it was held that
. . . a district attorney had authority to employ persons to assist in the detection of
crime and the gathering of evidence to be used in the prosecution of criminal cases
....
"In Pearson v. Reed, 6 Cal.App.2d 277, dealing with a prosecutor's immunity
from civil liability, it was held that the district attorney's function in determining
whether to institute criminal proceedings is discretionary, [and] that his authority to
investigate the facts before acting is unlimited . . . ." (Fn. omitted.)
A district attorney is also charged with the investigation and prosecution of certain
civil violations relating to, e.g., consumer fraud (§§ 17535-17536; Gov. Code, § 26509, subd. (a)),
restraints on trade (§ 16750), unfair competition (§§ 17204, 17206), and the handling of hazardous
materials (Health & Saf. Code, §§ 25181, 25182, 25299.02, 25516.1). (See also Rauber v. Herman
5
Rule 1-100, paragraph (C) provides:
"Because it is a practical impossibility to convey in black letter form all of
the nuances of these disciplinary rules, the comments contained in the Discussions
of the rules, while they do not add independent basis for imposing discipline, are
intended to provide guidance for interpreting the rules and practicing in compliance
with them."
4. 91-1205
(1991) 229 Cal.App.3d 942, 948 [welfare fraud]; Board of Supervisors v. Simpson (1951) 36 Cal.2d
671, 674-675 [public nuisance abatement]; 64 Ops.Cal.Atty.Gen. 826, 831 (1981) [collection of
fines for trespass]; 63 Ops.Cal.Atty.Gen. 457 (1980) [unfair employment patterns and practices].)
Consequently, a public prosecutor is authorized to investigate criminal matters and
certain civil law enforcement cases.6 It is expressly noted that we are concerned here only with civil
cases of the type set forth in the above examples, which are essentially law enforcement in nature.
In People v. Pacific Land Research Co. (1977) 20 Cal.3d 10, 17, the Supreme Court characterized
such cases as follows:
"An action filed by the People seeking injunctive relief and civil penalties is
fundamentally a law enforcement action designed to protect the public and not to
benefit private parties. The purpose of injunctive relief is to prevent continued
violations of law and to prevent violators from dissipating funds illegally obtained.
Civil penalties, which are paid to the government (§ 17536, subds. (b) and (c); Civ.
Code, § 3370.1) are designed to penalize a defendant for past illegal conduct. The
request for restitution on behalf of vendees in such an action is only ancillary to the
primary remedies sought for the benefit of the public. (People v. Superior Court
(Jayhill) 9 Cal.3d 283, 286.) While restitution would benefit the vendees by the
return of the money illegally obtained, such repayment is not the primary object of
the suit, as it is in most private class actions."
Clearly, an integral element of an investigation consists of interviewing witnesses.
The pertinent issue, therefore, as previously set forth in the "discussion" attendant to Rule 2-100,
is whether the communications in question are "limited by the relevant decisional law."
Ordinarily, of course, counsel for all parties, absent a privilege (such as attorney-
client or attorney work product), have a right to interview an adverse party's witnesses (if they are
so willing) without the presence or consent of opposing counsel. (Bobele v. Superior Court (1988)
199 Cal.App.3d 708, 713.)
In a criminal cause, however, the accused has a right not to be a witness against
himself, and to the assistance of counsel. (Cal. Const., art. I, § 15; U.S. Const., 5th, 6th Amends.)
Do these constitutional provisions constitute a limitation upon the authority of a public prosecutor
to conduct an interview during the investigative phase of a law enforcement proceeding?
In connection with the right against self incrimination, the United States Supreme
Court has ruled that the accused must be advised of the right to counsel and to remain silent once
the accusatory stage of the criminal process has been reached. (Edwards v. Arizona (1981) 451 U.S.
477, 481-482; Miranda v. Arizona (1966) 384 U.S. 436, 467-470.) Significantly, the right does not
attach to an individual who is not yet in custody. (People v. Morris (1991) 53 Cal.3d 152, 197.)
Quoting from a federal case, the California Supreme Court in Morris observed:
"``One of the primary purposes of preliminary questioning is to separate a
group of persons possibly involved in a crime into those who should and those who
should not be arrested - to decide whether all, some, or none should be charged. To
turn all such questioning into custodial interrogation, requiring Miranda warnings
6
An inspector acting within the scope of statutory legal authority in contacting a regulated
business for purposes of inspection was "authorized by law." (ABA Committee on Ethics and Prof.
Responsibility, Opn. No. 1496 (1983).)
5. 91-1205
in all cases, may help those eventually charged. But it could also seriously interfere
with the process of information gathering and on occasion force the police to cast
their net of arrest too wide, significantly interfering with the liberty of the innocent.'"
(Id. at p. 198.)
In People v. Dorado (1965) 62 Cal.2d 338, 354, the court analyzed the right to counsel and to
remain silent during a custodial interrogation, but then added:
"Nothing that we have said, of course, should be interpreted to restrict law
enforcement officers during the investigatory stage from securing information from
one who is later accused of the crime or from obtaining answers to their questions.
Indeed, any statements obtained without coercion . . . given in the absence of the
requirements for the accusatory stage, may be admitted into evidence."
Moreover, a defendant's Fifth Amendment rights are not retained after an effective waiver. (People
v. Sanders (1990) 51 Cal.3d 471, 512.)
In connection with the Sixth Amendment right to counsel, an accused may not be
interrogated without counsel when a criminal charge has been filed and the accused has retained
counsel. (Massiah v. United States (1964) 377 U.S. 201; People v. Duck Wong (1976) 18 Cal.3d
178, 185.) However, the right attaches only when adversarial judicial proceedings have been
initiated (People v. Mattson (1990) 50 Cal.3d 826, 868), "whether by way of formal charge,
preliminary hearing, indictment, information, or arraignment" (Kirby v. Illinois (1972) 406 U.S.
682, 688-689). In People v. Murphy (1982) 127 Cal.App.3d 743, 749, the court stated:
"For Sixth Amendment purposes, the right to counsel ``attaches only at or
after the time that adversary judicial proceedings have been initiated' (Kirby v.
Illinois (1972) 406 U.S. 682, 688); the California Supreme Court has held that there
is no requirement for the presence of a prospective defendant's counsel during even
a custodial interrogation occurring in the investigatory stage of a case, before the
institution of criminal charges, if the prospective defendant has been properly
advised of his Miranda rights. (People v. Duck Wong (1976) 18 Cal.3d 178, 184-
187.)"
The right to counsel does not attach before the government's role shifts from investigation to
accusation. In People v. Mattson, supra, 50 Cal.3d at 868, the court reiterated:
"We observed that ``[f]ollowing the commission of a possible crime, it is
essential that the police not be unduly hampered in their investigation. Under
defendant's propos[al] . . . however, interrogation of suspects could be delayed
indefinitely while the officers attempted to locate the suspect's counsel, notify him
of the proposed interview, and either obtain his consent thereto or permit his
participation therein. We find no convincing reasons why such a cumbersome
procedure is necessary to protect a suspect's constitutional rights.' (People v. Duck
Wong, supra, 18 Cal.3d at 187.)"
The foregoing is not intended to comprise a comprehensive summary of the law
respecting the right against self incrimination or the right to counsel. It is, instead, sufficient to note
6. 91-1205
that criminal and civil7 investigations by public prosecutors are both authorized and limited by law.
However, they are not limited by either the Fifth or Sixth Amendment prior to the initiation of the
accusatory stage. In our view, then, investigatory interrogations are "communications otherwise
authorized by law" within the meaning of subparagraph (C)(3) of Rule 2-100.
We find support for our conclusion from cases interpreting the American Bar
Association's Disciplinary Rule 7-104(A)(1) of the Code of Professional Responsibility. This rule
provides:
"During the course of his representation of a client a lawyer shall not:
"(1) Communicate or cause another to communicate on the
subject of the representation with a party he knows to be represented
by a lawyer in that matter unless he has the prior consent of the
lawyer representing such other party or is authorized by law to do
so."
The federal circuit courts are generally in accord that this rule does not apply to pre-accusatory
communications. (United States v. Ryans (10th Cir. 1990) 903 F.2d 731, 739-740 ["the perceived
threat to the integrity of the attorney-client relationship is outweighed here by the government's
interest in effective law enforcement"]; United States v. Sutton (D.C.Cir. 1986) 801 F.2d 1346, 1366;
United States v. Dobbs (8th Cir. 1983) 711 F.2d 84, 86; United States v. Kenny (9th Cir. 1981) 645
F.2d 1323, 1339; United States v. Lemonakis (D.C.Cir. 1976) 485 F.2d 941, 955-956; cf. United
States v. Hammad (2nd Cir. 1988) 858 F.2d 834, 839 ["a prosecutor is ``authorized by law' to employ
legitimate investigative techniques in conducting or supervising criminal investigations"].)
In United States v. Fitterer (8th Cir. 1983) 710 F.2d 1328, the prosecutors used an
accomplice to record and transmit a conversation with the accused in the absence of his counsel.
After explaining that the prosecutor's conduct impaired neither the defendant's Fifth nor Sixth
amendment rights, the court concluded:
". . . Fitterer argues that because he had retained counsel for the grand jury
investigation the prosecutor could communicate with him only through his attorney,
and not through [the accomplice].
"We reject Fitterer's contention. Under his view, once the subject of an
investigation retains counsel, investigators could no longer direct informants to
gather more evidence. We do not believe that DR 7-104(A)(1) of the Code of
Professional Responsibility was intended to stymie undercover investigations when
the subject retains counsel. . . . We find no ethical violation on the part of the
prosecutors." (Id. at p. 1333.)
However, three circuits have indicated that this rule either does or may apply to a pre-adversarial
interview of a suspect in custody. (United States v. Killian (5th Cir. 1981) 639 F.2d 206, 210;
United States v. Durham (7th Cir. 1973) 475 F.2d 208, 211; United States v. Thomas (10th Cir.
1973) 474 F.2d 110, 112; see also Suarez v. State of Florida (Fla. 1985) 481 So.2d 1201, 1206.)
7
Statutory compliance actions by a prosecutor, such as those set forth at the outset, are essentially
civil in nature (People v. Superior Court (Kaufman) (1974) 12 Cal.3d 421, 431-433), and do not
invoke the full panoply of constitutional constraints which attend criminal proceedings.
7. 91-1205
In our view, Rule 2-100 does not apply to a custodial interrogation during the
investigatory stage of the proceeding. In the absence of constitutional limitations, as previously
discussed, a prosecutor is authorized by law to employ all legitimate means to investigate crime.
Interrogation of suspects is a legitimate method of investigation. Such interrogations are
"communications otherwise authorized by law" as provided in subparagraph (C)(3), which makes
no distinction respecting custody, and are therefore expressly exempt from Rule 2-100's general
prohibition.8 Subparagraph (C)(3) of Rule 2-100 brings California law into conformity with the "law
enforcement" exception to the American Bar Association's disciplinary rule.
While our conclusion is fully predicated upon the foregoing, it is further noted that
Rule 2-100 pertains to communications with a "party" known to be represented by counsel. That
term, as well as the phrases "while representing a client" and "the subject of the representation"
appear to contemplate an adversarial relationship between litigants, whether in a criminal or civil
setting. Such a relationship would, at best, be difficult to define during the investigative stage of a
criminal proceeding. (United States v. Ryans, supra, 903 F.2d at 739; State of New Jersey v. CIBA-
GEIGY Corp. (1991) 247 N.J.Super. 314, 321 [589 A.2d 180].)9
It is concluded that during the investigative phase of a criminal or civil law
enforcement proceeding, Rule 2-100 does not prohibit a public prosecutor, or an investigator acting
under the direction of a public prosecutor, from communicating with a person known to be
represented by counsel, concerning the subject of the representation, without the consent of such
counsel.
*****
8
Communications by a prosecutor during the course of a civil or criminal law enforcement
investigation with a public officer, board, committee, or body are not prohibited by the Rule 2-100
pursuant to subparagraph (C)(1).
9
The State Bar has noted, however, in its discussion attendant to Rule 2-100 that such terms "are
not limited to a litigation context."
8. 91-1205