Home > Professional Regulation > Virginia Supreme Court to review a proposed amendment to Rule 4.2
Pursuant to Part Six: Section IV, Paragraph 10(g) of the Rules of the Supreme Court of Virginia, the Virginia Supreme Court is expected to consider for approval, disapproval, or modification, a proposed amendment to Rule 4.2 of the Rules of Professional Conduct by the Standing Committee on Legal Ethics and approved by the Council of the Virginia State Bar on October 16, 2009.
RULE 4.2
The Virginia State Bar’s Rule 4.2 Task Force is proposing an amendment to Comment [5] of Rule 4.2 to address the situation in which a defendant who is in custody, formally charged and represented by counsel, waives his rights under Miranda v. Arizona and wants to give a statement to a law enforcement officer without his counsel present. If the law enforcement officer seeks legal advice from a Commonwealth’s Attorney (“CA”) regarding whether the officer may obtain a statement from the defendant under these circumstances, may the CA advise the police officer without violating Rule 4.2? Rule 4.2 prohibits a lawyer from communicating with a person the lawyer knows to be represented by counsel unless the counsel for the represented person consents or the communication is authorized by law. Rule 8.4 (a) states that a lawyer cannot violate a Rule through the agency or actions of another. A reading of the current rules leads to the conclusion that the CA cannot ethically advise law enforcement officers to proceed with the custodial interview without notice to or consent from the accused’s lawyer. The Task Force determined that the defendant’s waiver of his right to have his lawyer present when the accused desires to talk to a law enforcement officer presents a constitutional legal issue on which the CA should be permitted to give advice without fear of violating the cited rules. The proposed amendment to Rule 4.2, Comment [5] clarifies that the CA can advise the law enforcement officer regarding the legality of an interrogation or the legality of other investigative conduct. The proposed amendment to Comment [5] does not authorize the CA to “script” or “mastermind” the police’s interrogation of the defendant.
Inspection and Comment
The proposed amendment may be inspected at the office of the Virginia State Bar, 707 East Main Street, Suite 1500, Richmond, Virginia 23219-2800, between the hours of 9:00 a.m. and 4:30 p.m., Monday through Friday. Copies of the proposed amendment can be obtained from the offices of the Virginia State Bar by contacting the Office of Ethics Counsel at 804-775-0557, or can be found at the Virginia State Bar’s website at http://www.vsb.org.
Any individual, business or other entity may file or submit written comments in support of, or in opposition to, the proposed amendment by filing nine copies with the Clerk of the Court and three copies with Karen A. Gould, the Executive Director of the Virginia State Bar, not later than December 14, 2009.
Updated: October 28, 2009