Update on the proposals to amend Rules 3.8 and 4.2

Excerpt from draft minutes of June 24th meeting of the Criminal Justice Commission Committee on Proposed Revisions To the Rules of Professional Conduct:

The purpose of this committee was discussed.

Proposed revisions to the Rules of Professional Conduct, Rule 3.8 “Special Responsibilities of a Prosecutor and Rule 4.2 “Communication with Person Represented by Counsel” were originally proposed several years ago by the Connecticut Bar Association based on revisions made by the American Bar Association (ABA). The committee does not know why these proposals were resurrected. Justice Katz stated that the Practice Book Committee does not have a vested interested in these proposal revisions.

Issues regarding Rule 3.8 “Special Responsibilities of a Prosecutor

  • • Back attempt at altering substantive criminal law through ethics rules
  •  Can law enforcement officials issue subpoenas? Are they independent agents?
  •  Why can’t defendant sign a waiver of rights in order to speak to prosecutor?
  •  Practical problem for GA courts: can’t speak to prosecutor prior to court opening
  •  Possibly change bond form to include notice of rights
  •  Changes may need to be made regarding the rights of an accused but ethical violations is not the best way to make these changes. Changes should be made via the Practice Book not the Rules of Professional Conduct

Issues regarding Rule 4.2 “Communication with Person Represented by Counsel”

  • In 2006, the Public Defender’s Office supported the ABA change from ‘party’ to ‘person’
  • Malpractice insurance issue?
  • Habeas issues regarding ineffective assistance of counsel
  • One word change has a lot of ramifications-change to person affects both sides

For the next meeting, Attorney Nardini is going to find out how other jurisdictions have interpreted the scope of “important pretrial rights” for purposes of Rule 3.8. The Public Defender’s are going to find out the position of their office on proposed rule 3.8 (6).

The Rules Committee would like a recommendation on the proposed revisions by September.

The next meeting is scheduled for Monday, July 20, 2009 at 2:00 p.m. in the Attorney Conference Room at the Supreme Court.