Do Victims Need to Be Protected from Defense Lawyers?

Do victims need to be protected from defense lawyers? A bill in the Louisiana legislature would make it a criminal offense for a defense lawyer to fail to identify themselves when speaking to a crime victim or to fail to advise the victim that they do not have to speak with the defense lawyer.

Sounds reasonable, right? I mean, it might, if you know nothing about criminal defense attorneys, how defense investigations are conducted, and the rules that already govern attorneys in Louisiana and other states…

  1. Defense attorneys are already required to identify themselves and, if they do not, they can be disciplined including disbarment, and
  2. Defense attorneys are also required by those same ethics rules to not give advice to someone they do not represent, including a crime victim, or they can be disciplined and subject to disbarment.

I have not heard crime victims complaining about how defense lawyers are being mean to them. None have ever complained to me or about me that I am aware of. I have seen and heard horror stories, however, of prosecutors being abusive to crime victims, threatening them with arrest, and issuing illegal subpoenas to force them to meet with prosecutors…

Who do victims need to be protected from? Defense lawyers or prosecutors?

Do Victims Need to Be Protected from Defense Lawyers?

The effect of a bill like the one proposed in Louisiana will be to open the door for investigation, harassment, and arrest of defense lawyers.

Every defense lawyer would have to record every communication they have with a crime victim and ensure that there are multiple witnesses in the room every time they speak to a crime victim. Some defense lawyers will feel it necessary to draft a document stating who they are and that the witness does not need to speak with them and have the witness sign it.

Even with these protections, some prosecutors and law enforcement officers will investigate and attempt to prosecute defense lawyers, for doing their job, because the law says they can. Don’t think that will happen?

It happens all over the country – for example, in Louisiana where they are trying to pass a bill making it easier to harass defense lawyers:

Even before this new legislation was on the table, defense attorneys said, the Orleans Parish District Attorney Leon Cannizzaro’s office had a history of criminally prosecuting public defenders for doing their jobs. In recent years, his office brought felony criminal charges— including kidnapping and impersonating a peace officer—against at least four defense attorneys and investigators for speaking to witnesses during the course of investigations, according to a report in The Guardian. One investigator was accused, due to a mistake, of misidentifying herself, even though she provided a business card. None of the charges against her and the other defense attorneys and investigators resulted in convictions.

Do Defense Lawyers Need to Tell a Crime Victim Who They Are?

First, an attorney cannot speak to any person who is represented by another attorney without the other attorney’s consent. Rule 4.2 of the SC Rules of Professional Conduct says:

In 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 to do so by law or a court order.

Although this will apply to any alleged victim who has is represented by a victim’s rights lawyer, it will not apply to most alleged victims – the prosecutor does not represent the victim, they represent the State.

SC Rules of Professional Conduct, Rule 4.3 is directly on point, however:

In dealing on behalf of a client with a person who is not represented by counsel, a lawyer shall not state or imply that the lawyer is disinterested. When the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer’s role in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding.

A defense lawyer who is speaking to a crime victim must absolutely tell the witness who they are and who they represent. Furthermore, if it appears that the witness is confused about whose interests the attorney represents, the attorney must clarify it and correct any misunderstandings.

If the attorney does not, they are subject to professional discipline up to and including disbarment.

Can a Defense Lawyer Give Advice to a Crime Victim?

Rule 4.3 also addresses the question of whether a defense lawyer can offer advice to a crime victim – they cannot.

The lawyer shall not give legal advice to an unrepresented person, other than the advice to secure counsel, if the lawyer knows or reasonably should know that the interests of such a person are or have a reasonable possibility of being in conflict with the interests of the client.

With very few exceptions, the interests of an alleged victim/witness will be in conflict with the interests of the attorney’s client, and the attorney cannot ethically give any advice to that person other than advising them to retain their own attorney who can answer their questions.

A law that requires a defense lawyer to give advice to a victim or any witness would be a law that requires attorneys to violate the ethics rules… “You do not have to speak to me” is a legal answer to a legal question, which is exactly what the rule prohibits.

Do Victims Need to Be Protected from Prosecutors?

I have never seen a case where a defense lawyer harassed, tricked, or threatened a crime victim. It may happen, and, when it does, that attorney will face discipline from their state bar.

have seen, repeatedly, cases where prosecutors harassed, tricked, and threatened crime victims:

  • In Louisiana, the Civil Rights Corps, the ACLU, and the ACLU of Louisiana filed a federal lawsuit against the DA’s office in New Orleans for using fake subpoenas to pressure witnesses and victims to appear for private interviews and for jailing victims and witnesses to secure their testimony at trials;
  • In SC, prosecutors have forged the Clerk of Court’s signatures on subpoenas (the rules require the Clerk of Court sign a criminal subpoena);
  • In SC, prosecutors have issued illegal subpoenas for investigation purposes when no case existed to get around the requirement of a judge’s approval of a search warrant;
  • In SC, prosecutors have issued “fake” subpoenas to force witnesses and victims to appear at the solicitor’s office for interviews when there was no trial or term of court;
  • In SC, prosecutors have issued illegal subpoenas to out of state witnesses and victims and threatened them with arrest if they did not appear; and
  • In SC, prosecutors have threatened victims with arrest and prosecution if they did not testify for the prosecution.

With impunity.

While defense lawyers are subject to the ethics rules and are disciplined when they violate the rules, prosecutors in SC are held to a very different standard… At least one SC attorney I know has filed grievances with documentation of these practices, and the Bar dismissed the complaints, effectively sanctioning the conduct.

Because the courts and the Bar’s disciplinary counsel refuse to hold prosecutors accountable, we need legislation to protect victims from prosecutors and police, not defense lawyers.

Politicians are not going to get any votes by complaining about unethical prosecutors, though, are they?

Criminal Defense Lawyer in Charleston, SC

Grant B. Smaldone is a criminal defense lawyer based in Charleston, SC who defends state and federal criminal cases in the Eastern SC area.

If you have been charged with a crime in state or federal court in SC, call now at (843) 808-2100 or contact us online to talk to a Charleston, SC criminal defense attorney today.


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