The Supreme Court of Virginia has provided a safe harbor for prosecutors to advise police about questioning a willing defendant even after a defense lawyer has been appointed.
It was a hot topic for Virginia prosecutors. A 2009 U.S. Supreme Court decision allowed police interrogation even after a right to counsel attached in some cases under the U.S. Constitution. But prosecutors faced Virginia’s ethical prohibition against communication with represented persons. Could they ethically advise police to act on their behalf in questioning a talkative defendant even after appointment of counsel?
Comment 5 to Rule 4.2 of the Rules of Professional Conduct now makes it clear that what the Constitution allows is also permitted under the rules. “This Rule does not prohibit a lawyer from providing advice regarding the legality of an interrogation or the legality of other investigative conduct,” the comment reads.
Henry County Commonwealth’s Attorney Bob Bushnell served on the task force that recommended the change and praised the nonpartisan collaboration in that group. “”Everybody put aside their adversarial roles and sought a reasonable solution,” he said.
By Peter Vieth