California's proposed amendments to Code of Conduct
From John Wesley Hall's lawofcriminaldefense.com: Proposed amendments to the Code of Professional Conduct in California would bar flat rate fees and permit prosecutors to directly contact defendants who have counsel. Prosecutors would be permitted to settle civil claims in connection with criminal cases.
The reasons why these rules could not work should be fairly obvious:
Flat rate fees are necessary in criminal cases if we care to get paid for the work we do.
Prosecutors would love to communicate directly with our clients - a large part of my job is keeping the prosecutor and investigators away from my client so that my client does not hurt himself or herself, and so the prosecutor who is a trained legal advocate does not have an unfair advantage over my client who is not trained in the law.
We have an ethics rule that states an attorney cannot use the threat of criminal prosecution to gain an advantage in a civil matter. Prosecutors come close to running afoul of this rule quite often - the proposed California rule sounds like it would give them license to threaten prosecution to give "victims" the advantage in what should be a civil, not criminal, case. This comes up most often in breach of trust (South Carolina's version of embezzlement) cases, or "stop payment on check" cases.
California is worlds away from South Carolina, but if something like this is allowed to fly anywhere in the country it is only a matter of time before they try it here as well. Hall reports that NACDL is drafting a response to the proposals.
