OPINION 137
September 1956

PROSECUTION OF THOSE ACCUSED OF A CRIME -- NEGOTIATIONS WITH THE OPPOSITE PARTY -- Since the defendant in a criminal action is a party, a district attorney may not attempt to elicit a statement or plea of guilty from the defendant nor submit him to a lie detector test or otherwise deal with the defendant without consent of his attorney when one has been engaged. The duty of the district attorney is not to convict, but to see that justice is done.

Canons 5, 9.

Questions

1. Is it in violation of the Canons of Ethics for an attorney being a member of a district attorney's staff to attempt to elicit a confession or statement from a defendant charged with the criminal offense without consulting the attorney of record of such defendant or giving him permission to be present?

2. For an attorney on the staff of a district attorney to attempt to work out a plea of guilty for a defendant charged with a criminal offense without consulting the attorney of record for such defendant or permitting him to be present at such time?

3. For an attorney employed in the office of the district attorney to submit a defendant to a lie detector test, or, administer truth serum to said defendant without first obtaining the consent of the attorney of record for said defendant or permitting such attorney to be present at such time?

Opinion

We can start with two propositions which are axiomatic.

1 An attorney is an officer of the court. A fortiori, a district attorney is an officer of the court. The first sentence of the second paragraph of Canon 5 states:

"It should be the primary duty of a member engaged in public prosecution not to convict, but to see that justice is done."

2. The attorney client relationship exists between a district attorney on the one hand and the state and county on other.

It is our opinion that a person charged with a criminal offense is a party as the term is used in the first two sentences of Canon 9. Opinions are plentiful, both by the American Bar Association Committee and by this committee, to the effect that comparable conduct in a civil case would be unethical.

We have carefully checked every opinion by this committee and by the committee of the American Bar Association and find only one opinion on this question. In Opinion No. 87, this committee held that it violates Canons 19 and 22 for a prosecuting attorney to have a defendant in a criminal case examined by doctors during the course of the trial without the knowledge or consent of counsel for defendant. We think that opinion reached the correct result but assigned the wrong reason. It is difficult to see how Canons 19 or 22 have any application.

It is our opinion that all three questions submitted are the same. The conduct described in each violates Canons 5 and 9. (9-0) (See Opinion 144 also)