People v. Green

1979] v Green

PEOPLE GREEN (Calendar 3). 6, Argued Docket No. 59674. June No. Decided 26, January 1979. charged first-degree Ernest E. Green was with murder. While in jail awaiting trial he initiated a series of discussions with the investigated detective who had the crime. Two of these discus- appointed represent sions occurred after counsel had been him. The first ceased when the defendant said he wanted to attorney. During discussion, talk to his the second the defend- only specifically ant not waived his Miranda but also attorney present. stated that he wished to talk without his An ^{[4] [6] [16]} [10, [8] [9, 14, ^[15] [1, [2, [3,17, Accused’s Accused’s Accused’s 29 Am Jur Attorney’s dealing directly Accused’s Duty Accused’s Accused’s 63 Am Jur 29 Am Jur 5, 21 Am Jur 20 Am Jur 12-14] 21 Am Jur 5 ALR3d 1269. Court cases. 18 L Ed 2d 1420. Court cases. 18 L Ed 2d 1420. Court cases. 18 L Ed 2d 1420. disciplinary proceeding. 1 ALR3d 1113. Court cases. 18 L Ed 2d 1420. 5 ALR3d 1269. 11] 20 Am Jur 1003. 7] 18] to advise accused as to 21 Am Jur 21 Am Jur 7 Am Jur 29 Am Jur 7 Am Jur right right right right right 2d, 2d, 2d, 2d, 2d, 2d, 2d, References Evidence 408. Prosecuting Attorneys § Evidence Criminal Law Courts 82. to counsel to assistance of counsel at or to counsel under the Federal to counsel under the Federal to assistance of counsel at or to counsel under the Federal 2d, Courts Criminal 2d, 2d, Attorneys 2d, 2d, Criminal Law 312. Criminal Law 312. Attorneys Evidence 408. §§ § §§ for Points Law 318. under 1, right with client of another as §§ 249. § at Law 38. at Law § 316, the Federal to assistance of counsel. 3 ALR2d § § 317. §§ in Headnotes § §§ 3, 4, 27. 38. prior Constitution-Supreme Constitution-Supreme Constitution-Supreme Constitution-Supreme prior arraignment. arraignment. ground 405 Mich prosecuting attended this discussion without assistant attorney. communicating with defendant’s details, statement, exculpatory that an unidenti- made an acquaintance that he done admitted to him had fied his had charged. killing defendant The assist- the with which the was during prosecuting attorney is still one factor to be in the considered "totality of the circumstances” in order to determine whether a admissible, constitutionally defendant’s statements are there is no unconstitutional intrusion in this case. prosecuting attorney’s 4. The assistant conduct is not so fundamentally shocking unfair and to the of sensibilities rea- persons sonable that it rises to the level of a violation of due process Although discipli- of law. there was a violation of the rule, nary relatively pales comparison it was innocuous. It in to process the cases in which a due violation has been This found. deception is not a in case which the authorities or used force to ignorant helpless extract a confession from an defendant. they acquiesced by At most in a course of initiated conduct precisely doing they defendant who knew what he was after right present offered him the to have counsel after that was waived the defendant. Williams, joined by Fitzgerald, Justice who was Justice con- curring part, agreed exclusionary that the rule should not be However, agree extended to cover this case. he did not that the prosecuting attorney action of the assistant was "innocuous”. exclusionary wrongful The rule an indirect method to deter police action because the courts have no effective direct method disciplining police of officers. The courts do have a direct discipline wrongful by attorneys, method of to deter action 405 Mich 273 including prosecuting attorneys. prosecuting at- The assistant reported torney’s be to the Attor- in this matter should action Discipline appropriate action future ney Board for to deter Responsibility. of violations of the Code Professional Affirmed. Levin, Kavanagh, joined by concurred in the Justice Justice holding prosecutor disciplinary violated the rule that the had questioning part first he the defendant without when took counsel, agree notifying but the defend- defense he did that duty be The Court has a to ant’s statements should admissible. supervise practice procedure the law. of trial as well as of the sought the introduced obtained in Here evidence to be was practice. of rules This violation one of the Court’s established of profession prosecutor is to the action an affront whole the attorney-client the rela- for it the effectiveness of diminishes tionship the Fifth- Sixth-Amend- and enfeebles defendant’s rights. Court not here be diverted ment But the should rights. the It violation of defendant’s consideration procedure to the it has treat the affront the Court and should exclusionary applied be to deter The rule should established. unacceptable practice be of this kind. evidence should suppressed give unmistakable notice in addition action, exposure disregard in no rules will professional duty. way performance of assist an in the Jr., Moody, dissenting part, Justice that the Blair wrote general prohibited prosecutor be that a be rule should must interviewing obtaining from a defendant first the con- without sent of counsel or affirmation of counsel defense defense and, following advised defendant of his has advice, this the defendant still wishes to be interviewed without him, and in the that failure to follow this rule should result suppression resulting prosecutor was a direct evidence. participant conducting preparation of this in the for and presence upon prosecutor’s interview. The influence of the presence counsel’s could is immeasurable. Defense Furthermore, substantially interrogation. have altered the prosecutor accompanied interrogate the detective twice Green conduct without notification to defense counsel. Such prosecutor Additionally, should necessitates reversal. subjected disciplinary to action for his conduct. Levin, dissenting, primary purpose of Justice wrote that a prevent parties represented by disciplinary coun- rule is to harming opposing by law- sel from their cases statements yers. Only suppression of of a in violation statement obtained de- the rule that which rule was will vindicate interest v Green signed protect,'in Discipli- criminal as well as in civil cases. proceedings against lawyer nary a who violates the rule will lawyer’s by of not undo the harm done another client violation the rule. persons by concept that benefited retention of and 1. The are ingrained representation by deeply in our active is legal system. The this belief is status that we afford most development in the the Sixth-Amendment evident of ongoing proceedings; the counsel in criminal constitutional right may debate over when and how this be waived reflects litigant, high importance many protecting a not attach to only approaches adversary’s lawyer, from the of his but from well-meaning folly generally of own initiatives and the consequences ignorance. concept unfortunate of his The same disciplinary reflected in the rule at issue here. opinion acknowledging anyone 2. The lead avoids other protected

than a has an interest the Code of Profes- grips Responsibility, sional and thus need not come to with the protection primary purpose effective of that interest. A of the disciplinary party, rule is to shield the adverse not the adverse party’s attorney. emphasis protection people goes on the of beyond public reputation abstract concerns about the of the bar general society; Responsi- harm to the Code of Professional bility recognizes concretely that individuals can be harmed purpose protecting violations of ethical standards. The code’s becoming individuals from victims of unethical behavior has enforcement, going led an courts assume active role its beyond disciplinary proceedings may mere review reach courts; they supervisory power have exercised their particular damage cases to undo the caused individual human beings. cases, invariably protect 3. In civil the courts have acted to individuals who would otherwise have been victimized viola- disciplinary rule; suggested they tion of the have not that a disciplinary proceeding only appropriate is the and available remedy party prohibi- directly for a who has been harmed. apply equally tions civil rule in criminal and cases, principled enforcing and there is no basis for the rule in civil, criminal, Michigan but not cases. The and ABA 'ethics committees have refused to draw distinction between viola- tions in civil and criminal cases. The heart of the matter is achieved, purpose protecting people that if the rule’s is to be suppressed. evidence obtained in violation of the rule must be Disciplinary proceedings against prosecuting attorney not do might undo the harm caused an individual who otherwise Mich suppressed courts have evidence in have been convicted. Other disciplinary where a violation of the rule has criminal cases important in criminal to enforce the rule cases occurred. It is lawyer, already the advice of a continued because against assigned, protection an or is the individual’s retained power organized by the state. abuse of disciplinary proceedings Implicit holding that are 4. in the Court-promulgated only proper remedy for violation of may grant relief in standards is the result that a court charging of other rule violations such as the of an cases intended, contingent Surely results are not fee. such excessive making principled for but it will be difficult to advance a basis a distinction. (1977) App affirmed.

74 Mich 253 NW2d 763 by Coleman, C.J. Attorney — — District and Prose- 1. Criminal Law and Client cuting Attorneys — — Communi- Professional Misconduct cation With Defendant. request speak

A defendant’s to the authorities out of the presence attorney necessity of his does not obviate attorney notify attorney prosecuting the defendant’s and Responsibil obtain his consent under the Code of Professional ity; while the defendant’s initiative insistence that speak presence attorney the lack of out of the of his prosecuting attorney overreaching by the are factors to be mitigation, they compliance do considered in not excuse (Code disciplinary Responsibility, rules Professional 7-104[A][1]). Attorney — — 2. and Client Professional Misconduct Communi-

cation With Parties. prohibition The reasons for the ethical on communication an party represented with a counsel involve the party’s attorney proper and interests of the adverse and the functioning legal system, prevention of as well as the (Code overreaching Responsibility, DR 7- of Professional 104[A][1]). Attorney Responsibility — — Code of Professional Client Disciplinary Proceedings. comprised Responsibility Code of Professional is self-im- posed regulations prescribing of conduct internal the standards v Green for members of the State Bar which is enforced internal against offending State Bar attorney; action provisions statutory of the code are not constitutional or rights guaranteed persons. to individual Admissibility — Responsibil- — 4. Evidence Code of Professional ity. admissibility normally by applica- evidence determined statutory provisions, ble constitutional and court rules and doctrines; Responsibility common-law the Code of Professional lawyers plays part of no in such decisions. Prosecuting — — 5. Criminal Law Evidence District Attor- neys — — Professional Misconduct With Communication Defendant. by prosecuting attorney

Violation of the Code of Professional Responsibility disciplinary prohibiting rule communication represented by obtaining with a defendant counsel without standing by counsel’s consent alone should be dealt with State Bar action to insure that future violations do not by withholding jury occur rather than evidence from the or reversing granting the defendant’s conviction and him a new (Code Responsibility, 7-104[A][l]). trial of Professional DR Prosecuting Attorneys — 6. District Professional Miscon- Attorney — — duct and Client With De- Communication — Due Process. fendant prosecuting attorney Conduct of an assistant who listened to and minimally notifying communicated with a defendant without attorney fundamentally shocking his is not so unfair and to the persons sensibilities of reasonable that it rises to the level of a process law, although violation of due the conduct is a Responsibility disciplinary violation of the Code of Professional rules, where, most, acquiesced at the authorities in a course of by conduct initiated the defendant who knew what he was doing they right attorney after offered him the to have his present and after that was waived the defendant who specifically speak attorney stated that he wanted to his without (Code present. Responsibility, 7-104[A][l]). of Professional Opinion Concurring Dissenting Part and in Part Williams, J. See headnotes 1-6. Mich Prosecuting Attorneys —

7. District Professional Miscon- Attorney — —duct and Client Communication With De- fendant. prosecuting attorney Conduct of an assistant who communicated notifying with a defendant without should be reported Attorney Discipline appropriate to the Board for action to deter future violations of the Code of Professional (Code Responsibility Responsibility, of Professional DR 7- 104[A][1]).

Opinion Concurring Dissenting in Part Part and Kavanagh, — 8. Courts Trial. Supreme supervise procedure duty

It is Court to practice of law. trial as well as the — — — Mis- 9. Criminal Law Evidence Exclusion Prosecutorial conduct. practice Evidence obtained in violation of rules established excluded, should be not to vindicate violation of a defend- rights, unacceptable practice by prosecu- ant’s but to deter tion. — — — Professional Mis- 10. Criminal Law Evidence Exclusion conduct. Discipli- Statements of a defendant obtained in violation of the nary Responsibility Rules of the Code of Professional when a prosecutor part questioning notifying took in him without ñrst suppressed give defense counsel should be to unmistakable exposure action, notice disciplinary in addition to to disregard way rules will in no to serve assist (Code performance professional an duty in the of of Responsibility, 7-104[A][l]). Professional DR by Concurring Dissenting Blair in Part Part and in Moody, Jr., J. Prosecuting Attorneys — District and Professional Miscon- 11. Attorney — — duct and Client Communication With De- — — fendant Evidence Exclusion. general prosecutor The prohibited rule should be that a must interviewing obtaining from a defendant without ñrst the con- sent of defense counsel or the affirmation of defense counsel and, following that he has advised the defendant of his advice, this the defendant still wishes to be interviewed without him; failure to obtain consent or affirmation should result in (Code suppression any resulting of evidence Professional of Responsibility, 7-104[A][l]). DR Green by

Dissenting Opinion Levin, Attorney — — 12. Misconduct Communi- and Client Professional Party. cation Adverse Responsibility prohibition Code of of The in the Professional lawyer represented by party

communication a with an adverse (Code lawyer sought by a makes irrelevant who the interview Responsibility, 7-104[A][l]). of Professional DR Attorney — — 13. Misconduct Client Professional Communi- Party. With cation Adverse primary purpose against by the rule communication a party represented

lawyer by lawyer with an adverse a is to protect persons represented by lawyer harming a from their (Code by opposing lawyers cases statements of Professional 7-104[A][l]). Responsibility, DR Attorney — — 14. and Client Professional Misconduct Communi- Party — — With Adverse cation Evidence Exclusion. suppression Only of a statement obtained in violation the rule

against by lawyer party communication a with an adverse lawyer represented by a will vindicate the interest which the protect; designed disciplinary proceedings against rule was who violates rule will not undo the harm done lawyer’s by (Code another client violation of the rule of Profes- Responsibility, 7-104[A][l]). sional Attorney Right— 15. and Client to Counsel. concept persons are beneSted retention of active representation by deeply ingrained legal system; the status this belief is afforded is most courts development evident in the of the Sixth Amendment (US VI). proceedings Const,

counsel criminal Am Attorney — — and Client Remedies. Professional Misconduct Supreme It would be anomalous Court to claim be acting protection public for the and in the interest of the justice administration of cases to then refuse individual particular persons assure that unethical are harmed practices; public by protect- protect except the Court cannot ing individuals. Mich Opinion by Coleman, C.J. — — Attorney Remedies. and Client Professional Misconduct 17. rely disciplinary proceedings on alone effectuate Courts do not Responsibility; they purposes of the Code of Professional necessary the results of unethical do what is to undo will thereby protect individuals who have been behavior and harmed such behavior. Attorney — Professional Misconduct. and Client principle goal legal system operates is the on the that the Our law, imposed by the limitations ascertainment of truth within part very the Code of Profes- includes as a of its fabric which Responsibility regulating lawyers in rela- conduct of sional legal system; no should tion to those who encounter permitted evidence to advance his client’s cause with ob- lawyer’s from another client in violation of a rule tained (Code designed safeguard against very violation as a 7-104[A][l]). Responsibility, DR Professional Kelley, Attorney General, A. Frank J. Robert Patterson, Derengoski, General, L. Solicitor Brooks Prosecuting Attorney, Williams, Robert C. Chief Appellate Richards, Counsel, S. and Thomas As- Prosecuting Attorney, people: sistant for the Sharbaugh Kuirsky & for defendant. affirm). (to appeals

Coleman, C.J. The defendant first-degree question his conviction of murder. The presented voluntary made is whether statements by detective and an assistant prosecuting attorney standingly knowingly under- after

waiving right his to an to remain silent nonetheless be must suppressed prosecuting attorney if the assistant 7-104(A)(l) legal Disciplinary violated Rule profession’s Responsibility, Code of Professional which states: "During representation the course of his of a client

lawyer shall not:

"(1) Communicate or cause another to communicate v Green Opinion by Coleman, C.J. subject representation party on the of the with a represented by knows to be in that matter prior represent- he has unless ing the consent of the party such other or do so.” is authorized law tp ruled, The Court of one Appeals judge dissenting, that an ethics alone does not violation warrant or require suppression voluntary statements. 351; 253 App 74 Mich NW2d We affirm.

I 8:30 approximately p.m., On October 1974 at and drove to a nearby the victim left her home market some milk. She took her six- purchase the market month-old child with her. Patrons of in her and a cashier saw her the market with 8:45 closing approximately p.m. child before at just nap approximately Her husband awoke from a at p.m. 11:45 and became worried when he discovered telephoned that she was not home. He rela- yet her. At together they began looking tive and a.m., 12:30 found her car in approximately they the market lot in it and the parking keys asleep child on the front seat. After a futile search area, surrounding drove the car home they telephoned police. The victim’s whereabouts remained unknown until late afternoon of October when some hunters found her in a river. body floating nearby An performed revealed that autopsy day the next she had been and once stabbed once the back the chest. The chest wound near the sternum. was penetrated through It some soft tissue between through the fourth and fifth ribs and continued front heart. The and back walls the victim’s through back both walls of the penetrated wound 405 Mich Coleman, C.J. lung. left The cause of death was shock victim’s hemorrhaging. spoke police 23 a citizen to the On October implicated police A the murder. and, the man at home officer visited while the extension, officer listened on an phoned the man tele- expressed the defendant and concern about fingerprints possibility or other incriminat- ing worry evidence. The defendant said not things. about these police

On October 24 the arrested the defendant and booked him for murder. The detective in charge of the case then drove defendant to the body area where the victim’s had been found and rights by advised the defendant of his Miranda1 reading from a card that said: right Anything you

"You have the to remain silent. say against can you and will be used in a court of law. right lawyer answering You have a to talk to a before any questions you right lawyer have the to have a present you you answering ques- with while are these you lawyer, tions. If appointed cannot to afford hire one will be represent you any questions you if before right any wish one. You have the to decide at time during questioning right before or your to use to re- your right main silent and to talk with a while you being questioned.”2 are questions:

the On back of the card were these you rights "Do I understand each of these have explained you? you Do want to talk to a any questions? before you your Will waive Arizona, v 1602; Miranda 384 US 86 S Ct 16 L Ed 2d 694 transcript, pp Trial 15-16 Green Coleman, C.J. questions may any ask we silent and answer remain you?”3 understood his indicated that he The defendant rights then denied waive them. He and would knowledge having any murder. message to sent a 28 the defendant October

On asking speak him. The de- the detective guards jail complained at fendant harassing him. That afternoon the detective were hearing jail. After his at the the defendant visited waiving again them, the de- Miranda concerning sup- proffered a statement fendant posed night on the of the crime whereabouts knowledge having again of the murder. denied the detective asked At the end of this discussion telling the truth and the if he was defendant said that was. repre- appointed to 31 counsel was

On October the defendant. sent impli- originally November 19 the man who

On against

in testified cated the defendant the murder preliminary examination. He the defendant at the lover until had been the defendant’s homosexual day the of the arrest.

According witness, defendant arrived to this the

acquaintance at the p.m. mately of a mutual between home

approxi- p.m. 19, on 1974. At October go party p.m. they in all decided to to a they car, the the Detroit. As entered defendant’s acquaintance him the defendant asked the to hand lying "there’s some- coat thing on the back seat because dangerous probably there that would they Detroit, the him”. After returned from acquaintance then was taken home. The defendant something to tell the witness said that he had 3 Id., pp 16-17. Mich Opinion by Coleman, C.J. anyone the witness could not tell else about

it. The defendant seat of his the reached underneath front large pulled

car, knife and out a said just lady”. that he "had killed his old When the expressed disbelief, said, witness the defendant proceeded "I’m serious” and to detail the circum- crime. He he stances of the said stabbed her (To easy”. chest and "it went illustrate the put point wound, location of the of the knife on the near chest witness the wit- sternum.) keys ness’s He also said he left her sleeping dumped her child in her car and had her body body in the water near the area where the eventually was found. When the witness continued express pointed disbelief, the defendant to what he said was a bloodstain on the knife.

Shortly approximately conversation, after this at 4 a.m. on October the defendant and the wit- ness entered another car with some friends who taking passengers were way one of the home. On the residence,

to that the defendant asked the slight past driver to take a detour. The detour led the market where the victim’s car had been found. The defendant said that he wanted to "check out something”. they past market, As drove gone.” said, defendant "It’s Primarily testimony, on the basis of this open defendant was bound over for trial on an charge of murder. during November,

Sometime the middle of again asking detective, sent word to the speak him. The detective and the assistant prosecuting attorney assigned to the case visited jail. However, the defendant at when the detective advised the defendant of his Miranda rights, the defendant indicated that he wanted speak talking with his before further v Green Coleman, C.J. immediately the case. The ceased discussion

about point. at that January, 1975, the end of the defendant

Near expressing again sent word to the authorities January 29 the detective and desire to talk.4 On spoke prosecuting attorney with each the assistant jail.5 the defendant at the other and then visited They the defendant’s did not communicate with attorney. the defendant of The detective advised rights. his Miranda rights waived to the and said that he wanted to talk attorney present.6 The de- authorities without his the murder and the defendant tective asked about proceeded exculpatory story to tell an about driv- night pur- ing to store on the of the crime to meeting revealed wine and a man who about chase some a something "killing large knife and said hearing before trial the detective testified: At the Walker Now, prosecutor]: you "Q. [by to interview did have occasion at time after that? him defendant] [the 29, Yes, January 1975. "A. on place? "Q. And did that take where County "A. At the Oakland Jail. "Q. present? Who was Yourself, myself "A. and Mr. Green. ”Q. you to be over there? And how did come jail through "A. Mr. Green had sent word from the one of transcript, p deputies to talk to us.” Trial 27. that wished testimony There is little about the conversation between prosecuting attorney. The detective testi detective and fied at trial: assistant "Q. [by you prosecuting Did attor- defense counsel]: [assistant ney] you on Ernest Green talk to each other before interviewed January 1975? what, "A. About sir. ”Q. anything, About about the interview? did, presume yes.” transcript, p 423. "A. I we Trial follows, speaking hearing At the detective testified as the Walker response questions: to defense counsel’s rights including lawyer, he waived his "He defendant] [the waived, wished discuss this case with us without he told us that he p you.” transcript, Trial 405 Mich Opinion Coleman, C. gave this bitch”. The defendant said he this man a to a ride bar and later discovered that the man managed slip had the knife underneath the defendant’s coat in the seat of the defend- back ant’s car. The defendant he threw the knife in said parking some lot in bushes next to a restaurant identify Detroit. He refused to man. At the story, prosecuting end of ney, the assistant this attor- point, up only taking who, to that had been telling notes, the defendant if asked he was whole truth. The defendant said that he was. hearing evidentiary

Prior to trial an was held to admissibility determine the of the defendant’s testimony taken, statements. After was defense objected January counsel to the admission of the ground on statements that the defendant prior making had not been advised the state- first-degree penalty ments that the mandatory murder was passing, life. In defense counsel added: just "I think prosecuting attorney for an assistant interrogate and Detective Blum to Ernest Green not advise him of that or even volunteer to invite me to jail, I don’t think that the admissions made on January 1975 should be admissible.”7 judge objection The trial overruled and the ultimately statements were admitted into evidence

at trial. jury first-degree convicted the defendant of

premeditated murder.

II appeal argued On the defendant has not that his transcript, p Trial v Green Coleman, C.J. involuntary that the authori- were or statements require- comply failed to with the Miranda ties that the statements ments. Instead he contends suppressed have because the assistant should been 7-104(A)(l). prosecuting attorney Al- violated ternatively contends that the statements should suppressed prose- have been because the assistant cuting attorney’s fundamentally conduct was so shocking unfair and to the sensibilities reasona- general persons ble it violated notions of due process of law. responds

The state there was no violation 7-104(A)(l) of DR in this case because the defend- January discussion, ant initiated the waived his right to counsel and indicated that he wanted to attorney pres- (cid:127)talk to the authorities without his argues Further, ent. the state that the assistant prosecuting attorney played only a minor role listening discussion, the ing to the defendant and tak- overreaching notes, and that there was no of Alternatively kind. the state contends that the exclusionary apply of rule does not to violations Responsibility. proper the Code of Professional The proceedings against action is the of- fending argues attorney. Finally, the state that if

the admission of the defendant’s statements at trial was

error, it was harmless.

Ill question The threshold is whether the assistant 7-104(A)(l). prosecuting attorney violated DR Appeals unanimously The Court of concluded prosecuting attorney that the assistant had acted improperly. prosecut-

The state has conceded in its that brief ing exempt attorneys are not the strictures of from Mich Opinion Coleman, C.J. 7-104(A)(l).8 argues, however, that no DR The state 7-104(A)(l) in this case occurred violation of speak with intention to of the defendant’s because attorney present and the authorities without overreaching by the assist- of the lack because prosecuting attorney. ant. request argument the defendant’s attorney

speak presence obviates of his out of the necessity notifying the defendant’s contrary obtaining is his or her consent and opinions by American Bar Association both the Michigan Committees State Bar Association on Professional Ethics.

In ABA Formal 108 issued interpret forerunner Committee was asked 7-104(A)(l), 9, which stated: of DR old Canon upon any way communicate "A should not in represented controversy party with a subject counsel; negotiate or much less should he undertake him, only compromise the but should deal matter upon It incumbent most with his counsel. everything may tend to mis- particularly to avoid counsel, he should represented by party not lead a not undertake to advise him as to law.” question

whether before the committee was plaintiffs attorney in a civil case could ethi- cally in absence of the interview the defendant the willing attorney defendant’s if the defendant was unanimously the committee to discuss case. The quoting negative and, after Canon answered 9, stated: equally clear. prohibition

"The for such a are reasons brief, Michigan Appellee’s p on Bar Committee 30. See also State J, 5, pp 202, 29-30 Opinion No 46 Mich St Bar Ethics Professional (1967). People v Green by Opinion Coleman, J. C. They arise out of the nature attorney of the relation of and client equally imperative and are in the interest of preserve party attorney. the adverse and of his To proper functioning legal profession of the party as well as to shield the improper adverse from approaches the Canon wise and beneficent and\ should obeyed.”9 202, In Michigan Opinion State Bar issued in approved State Bar Board of 1966, Commissioners the committee was faced with the question whether Canon 9 prohibited a prosecuting from attorney interviewing a criminal obtaining defendant without first the consent of the defendant’s if attorney even the defendant requested the interview without informing his or her attorney. The committee unanimously an- in the negative.10 swered quotation from ABA Formal set forth above indicates there is more to this prohibition ethical than just prevention overreaching. and interests of the ad- verse party’s proper functioning legal of the system are involved as well.

Ethical 7-18, Consideration adopted 1975, American Bar Association in emphasizes importance of prohibition this ethical to the func- tioning of the legal system: legal system "The in its sense broadest functions best persons when legal in need of advice or are assistance represented by their own counsel. For reason a this lawyer should not subject communicate on the matter representation person his client with a represented knows to be lawyer, the matter pursuant unless to law or or rule of court unless he has Opinions American Bar Association of the Committee on Profes (1967), p sional Ethics J, pp 46 Mich St Bar 29-30 No 292 405 Mich 273 Opinion by Coleman, C.J. (Footnote person.”11

the omitted.) of the lawyer consent for that exempted prosecut- Other authorities have not 7-104(A)(l) ing attorneys from the strictures of DR requested in fact situations an interview or was where willing speak and where overreaching.12 there was no 7-104(A)(l) language of DR is clear and only exceptions. says contains two It "a * * * * * * party shall not knows to be he communicate with a * * * represented by unless prior lawyer represent- has consent of the ing (Emphasis party [that] or is authorized law to do so”. added.) presented any

The state has not reasons for a distinction between civil and criminal cases based willingness speak on the defendant’s and the overreaching. lack of Nor has the state addressed prevention the concerns addition to the of over- reaching expressed opinions in the ethics noted above.

We hold that while this defendant’s initiative willingness speak and the lack of over- reaching by prosecuting attorney the assistant are mitigation, they factors to be considered in do not compliance profes- excuse with the standard of 7-104(A)(l). prescribed sional conduct IV question brings Our resolution of the above us to (1975), Responsibility ABA pp Code of Professional 33C-34C. 12See, (CA Carlson, example, 431, United States v 423 F2d Star, 9, 1970), cert den 400 US 847 (1970); United States v Four 1406, (CA 9, 1970), (1970); cert den 400 US 947 F2d United Springer, 1344, (CA States v 7, 1972), cert den 460 F2d 1353-1354 (CA Thomas, (1972); and United States v US 873 474 F2d 111-112 10, 1973), cert den 412 US 932 v Green Coleman, C.J. dispute appeal principal in this —whether

voluntary by the defendant after made statements waiving understandingly knowingly his Mi- and suppressed solely rights must nonetheless randa prosecuting attorney violated assistant the because 7-104(A)(l). DR Appeals majority held that an The Court of standing not warrant or ethics violation require alone does suppression evidence. the of argued that the violation of The defendant has 7-104(A)(l) of his was violation suppressed, he will that unless his statments are wrong remedy to the no effective redress have done to him. misconception argument upon a basic

This rests Responsibility. The of the Code of Professional provisions not constitutional or of the code are persons. rights guaranteed statutory individual self-imposed regulations They are instead internal prescribing for the standards of conduct members principal Although it true that the of the bar.13 is purpose provisions protection many the of is

public, remedy traditionally for a has violation against internal action been bar offending by attorney. The sanctions available are

attorney permanent no means trivial. The faces respects provisions disbarment. In these provisions are no found in code different from the

professions, as the codes conduct for other such self-govern- They medicine or architecture. all are ing, regulations. in-house admissibility law, a court of of evidence in normally hand, determined on the other purposes For a and intended effect of recent discussion Opinion Responsibility, Informal 1420 issued Code of Professional see Standing Ethics and the American Bar Association Committee on appears Responsibility, in the ABA Professional June 1978. It (1978). July Journal of 1978. 64 ABA J 1173 Mich Coleman, C.J. statutory to relevant constitutional reference pertinent applicable court rules provisions, con- professional Codes of common-law doctrines. no in such decisions. play part duct of conduct New mixed the standard courts have 7-104(A)(1) provision other of a found in DR or questions into responsibility professional code of of evidence crimi concerning admissibility which have or civil cases. Even courts nal concept novel have linked their embraced this to do so with doctrines or decisions constitutional statutory provisions recognized present or See, Michigan’s example, People jurisprudence. Hobson, 894; 384 39 NY2d 348 NE2d NYS2d if argued also has his state- in suppressed are not this Court would ments of to unethical con- give stamp approval effect its part indicates III opinion clearly duct. As this above, a To the unsupported. such conclusion III a part reflects commitment contrary, future do not occur. Court to insure that violations good in the at a provide The facts case bar 7-104(A)(l) a of DR stand- example why violation ing disciplinary alone should be dealt with by bar withholding action rather than relevant and material evidence from the jury.

The defendant had a to tell story he wanted authorities, of the presumably to clear himself charge lodged murder him. He against sent word to the authorities and asked to with them. speak knowledge He waived his full Miranda of doing. what he was He stated specifically attorney present. he wanted to talk without the detec- prosecuting attorney assistant did defendant except tive little listen to what state- say had to and take notes. The defendant’s v Green Coleman, C.J. voluntary completely there was ments were overreaching if he kind. When asked no telling truth, said that he the whole was was. grant óf a new

Reversal of the conviction (if pre- and evidence trial fact the witnesses trial) obtained for a second in 1975 could be sented solely consequential than viola-

because of this less 7-104(A)(l) reprehensi- constitute tion of DR would ble "overkill”. this, action

In cases such as bar against offending attorney a would be directed appropriate response and serve as a more would deterrent than the indirect sanction more effective Although presence exclusionary rule. prosecuting attorney is still one factor assessing "totality of the circum- considered in order to determine whether defend- stances” ant’s statements are constitutionally admissible, in this fac- find no unconstitutional intrusion we tual situation. unnecessary

it to consider This resolution makes argument de- if admission the state’s error, it was fendant’s statements at trial was harmless.

V pros- question The final is whether the assistant fundamentally ecuting attorney’s was so conduct shocking unfair and to the of reasona- sensibilities persons it of a violation ble that rises to the level process it does not. of due of law. We find that prosecuting above, attor- As noted the assistant although ney’s conduct, DR 7- a violation of 104(A)(1), pales relatively It was innocuous. process comparison to the cases which a due Mich Opinion Williams, J. Rochin See, example, violation has been found. for California, v 165; 205; 96 L US 72 S Ct Ed 183

This is not a case in which the authorities used deception or force to extract a confession from an Brewer ignorant helpless (Compare defendant. Williams, 1232; 430 US 97 S Ct 51 L Ed 2d counsel.) [1977], dealing with the right At acquiesced most in a they course of conduct initi- ated a defendant who knew precisely what he doing right was after offered him they to have present counsel and after that was refused. doWe not find this so unfair or shocking so that the defendant’s conviction must be reversed.

We affirm.

Ryan, J., Coleman, concurred with C.J. (concurring part; dissenting in Williams, part). I concur with my opinion sister Coleman’s the prophylactic not, rule exclusionary need not, and should be extended to cover this case. However, agree while I prosecut- the assistant ing attorney’s action did not rise level of a law, violation of due I process disagree that his action was I "innocuous”. would affirm order but the Clerk to report this matter grievance to bar authorities appropriate action.

The "prophylactic exclusionary rule” is an indi- rect method wrongful to deter police action. Since the courts have no effective direct method of disci- plining officers, police method, this indirect which retrial, public costs the has been justified.

However, respect including to attorneys, prosecuting attorneys, the courts do have a direct method of discipline wrongful to deter their action. Attorneys disciplined can be grievance the bar v Green Opinion by Kavanagh, J. to

authorities, attorneys refer and the courts can action. appropriate for them Therefore, here com- future action as to deter mitted, jus- criminal burdening public without retrial, reach directly system tice with a Clerk to I order the wrongdoer, would alleged action attorney’s prosecuting the assistant report authorities grievance to the in this matter action. appropriate Williams, J., J.

Fitzgerald, with concurred dissenting (concurring part; Kavanagh, prosecutor part). holding I that concur 7-104(A)(l) in the part when he took violated DR notifying first of Ernest Green without questioning the defend- agree I do not defense counsel. be admissible. ant’s statements should forth the conven- for affirmance sets opinion action under disciplinary tional view that adequate is an grievance procedure established violations of dealing method of asserted, rules, it does rules. Violation of such of evidence. admissibility not affect the argu- also the defendant’s opinion rejects suppression ment of his statements without him. wrong he will have no for the done redress defend- opinion I am and the convinced both the ignore argument misperceive ant’s the error procedure duty supervise this Court’s practice trial as well as the of law. introduced was sought

Here the evidence to be this Court’s estab- obtained in violation of one of practice. lished rules of to the

This action is an affront prosecutor diminishes the effectiveness profession whole for it 405 Mich 273 Opinion by Moody, Jr., J. Blair relationship, and enfeebles the attorney-client rights. Fifth- and Sixth-Amendment defendant’s considera be diverted But we should not here rights. We of defendant’s tion of violation this Court and the should treat the affront I the apply would procedure it has established. deterring of purpose rule for exclusionary in this of the involved unacceptable practice type States, 206, 217; United 80 S case. Elkins v 364 US 1437; 4 L Ed 2d 1669 Ct un- give to suppressed

The evidence should be that, exposure to to notice in addition mistakable in action, disregard of our rules will disciplinary of performance in the way no assist an professional duty. Kavanagh,

Levin, J., J. concurred with in dissent- (concurring part; Moody, Jr., J. Blair in that ing part). holding I in the concur 7-104(A)(l) he took when prosecutor violated without questioning in the of Ernest Green part Under the circum- first defense counsel. notifying case, agree I do not the defend- stances this ant’s statements should be admissible. in the prosecutor participant

The direct was a of this inter- preparation conducting for and the prosecutor’s presence view. The influence of the upon the is immeasurable. Defense defendant counsel’s altered presence substantially could have Furthermore, interrogation. prosecutor interrogate accompanied twice the detective Green without counsel. notification to defense general prosecutor rule should be that a prohibited interviewing must from a defendant be of defense obtaining without first the consent counsel defense counsel or the affirmation of and, has advised the defendant v Green Dissenting Opinion Levin, J. following advice, this still wishes interviewed him. to do so without Failure resulting suppression result should evidence. prosecutor

Accordingly, the conduct Additionally, this prosecutor reversal. case necessitates subjected should be ac- tion for his conduct. (dissenting). Early

Levin, Ernest Green was first-degree questions convicted of murder.1 The 19, home, Phyllis accompanied On October McPhail left her son, get her six-month-old some milk at a market in Pontiac. return, When she failed to her husband went to look for her and parking keys her found car the market lot with the milk and in it boy asleep. police days and the little were called. Two her later body floating approximately was found in a mile river one from the autopsy apd market. An established that she had from died shock hemorrhage penetrating lung. due to wounds of the heart and charged On October 1974 Green was arrested and with the rights by murder. Green was advised of his Miranda a detective and questioned after he indicated that he waived them. Green denied knowledge the Oakland days message of the murder. Four later Green sent a from County asking speak Jail to the detective to with him guards. afternoon, by jail about harassment the He visited Green that rights, advised him of his Miranda and obtained a waiver. Green again having knowledge gave denied of the murder and the detective evening. a detailed statement of his whereabouts that appointed On October 31 counsel was for Green. held, preliminary On November 6 and 19 a examination was after Terry, which Green was sexual lover until the over bound for trial. William Green’s homo- arrest, day of his testified at the examination that he and Green had driven from Pontiac to Detroit and back on night Terry the the an Green asked the seat because "there dangerous Pontiac, knife, crime was committed. testified that when he and Detroit, acquaintance go party entered in Green’s car to to a acquaintance lying to hand him the coat on the back something probably in there that would be [is] Terry upon to him”. further testified that their return to seat, something Green looked for a under the car just found Terry lady” indicated to that he "had killed his old with knife, proceeded the and to detail of the crime. the circumstances conversation, Shortly entered another car according Terry, after this he to and Green taking some the friends who were one of passengers home. Green asked the driver to take a detour that led past the market where Mrs. McPhail’s car found so that he could was said, something”. past, gone.” they "check out As drove Green "It’s November, 1974, again requested In Green that the come detective Mich Dissenting Opinion Levin, 1) prosecutor a violates are: presented Whether 7-104(A)(l) Respon- Code Professional the statement from a defendant a sibility obtaining during a conversation represented lawyer, defendant, advice, the the without initiated 2) so, If whether lawyer; of his presence consent or suppressed. have been the should statement the prosecutor ruled that Appeals Court suppression was not the rule that violated but dissenting. affirms. one This Court justified, judge and that the rule was violated agree We all that in civil cases. it as well as applicable criminal should the statement disagree We whether suppressed. rule provides: prosecuting jail. The the assistant to the detective and jail. being assigned at the After advised of to the case visited Green rights he talk to indicated that wished to his his Miranda Green he talked to the detective. before 29, 1975, January prosecuting the detective the assistant On They again jail request. attorney attempt- did not came to the at Green’s again attorney. Green’s The detective to communicate with rights. of his This time he waived his advised Green Miranda lawyer being case without his and said he wanted to discuss the there. The detective asked about tell proceeded the murder and Green night exculpatory story driving to a an about store on murder, large meeting giving a ride to a man who revealed bitch”, "killing something this later discov- knife and said ering about slipped knife coat that the man had under Green’s some bushes

back seat of the car. He said he threw knife into identify parking He next to a restaurant man lot in Detroit. refused allegedly given completion of he had a ride At the met and to. statement, up prosecuting attorney, to that who his assistant notes, telling point only taking been asked Green if he was had Green said whole truth. was. hearing held to the admissi- Prior to trial a Walker was determine objected bility admission of the statement on the without January of Green’s statement of Green’s grounds it was obtained and, granting specifically, without Green his to counsel advising degree and prior making penalty first- him statements that the objection judge mandatory murder was life. The overruled were at trial. the statements introduced first-degree guilty and sentenced Green was found murder mandatory prison. serve the life term in v Green Dissenting Opinion by Levin, "During the course of representation his of a client a lawyer shall not:

"(1) Communicate or cause another to communicate subject representation on the knows to be of the party with a represented by lawyer a in that matter prior unless he has the consent lawyer represent- of the ing party such other or by is authorized law to do so.” 7-104(A)(l). Code of Professional Responsibility, DR The prohibition of any communication with an party represented adverse by a makes lawyer irrel- sought evant who the interview.

It is well-established in Michigan that old Canon 9,2 7-104(A)(1), the forerunner of DR prohibited a prosecutor from interviewing a defendant without first obtaining the consent of his even if lawyer, the defendant requested the interview.3

A primary purpose of the rule is protect any way upon "A subject should not in communicate controversy undertake to should deal party represented counsel; with a much less should he negotiate compromise him, or the matter with but only upon with his counsel. It is incumbent particularly everything most party may to avoid tend to mislead a represented counsel, and he should not undertake to Ethics, advise him as to the law.” Canons of Professional Canon 9. 3 Michigan 202, 5, April See State Bar Ethics issued approved by 18, and the Board of State Bar Commissioners November opinion printed J, (1967), pp in 46 Mich St B No 29-30 special professional ethics, judicial in a issue devoted to J, 2A, pp Mich St B No 279-280 question, opinion, as stated in the is: general "The Michigan inquires counsel of the State Bar of of the concerning propriety Committee defendant knowledge interviewing the ethical of a prosecuting a criminal authority case without attorney. usually He notes that such arises in requested instances when a private defendant himself has interview prosecutor knowledge with the approval without the or of his own counsel.” response The black letter reads: improper prosecuting "It is authority unethical and for a to inter- view knowledge a defendant in a criminal case without attorney consent of his of record.” By 16, 1978, opinion Michigan informal dated June committee ruled: paternity "An may for a defendant in a suit not communi- Mich 273 405 302 by Dissenting Opinion Levin, harming lawyer represented by persons a from opposing lawyers. by cases “statements their suppression Only in viola- statement obtained of a interest which that of the rule vindicate tion will protect. designed true in This is as the rule was proceedings Disciplinary as civil cases. criminal against lawyer will not violates the rule a who by lawyer’s client the harm done another undo violation rule.

I by concept persons reten are benefited representation by a tion of and active ingrained legal system. deeply The status in our develop this most evident in the afford belief is we right the Sixth to counsel ment of Amendment 4 proceedings. criminal many ruled a defendant courts have While represented by lawyer may deemed to a who is waiving lawyer’s his assistance have waived authority rights,5 courts, on the Miranda other Supreme summary in McLeod Court’s reversal 1556; 682 Ohio, 14 L Ed 2d 356; 381 US 85 S Ct a v (1965), adopted forbidding per inter- have se rule plaintiff represented prosecuting cate with who is having prior prosecuting attor- first consent of the without obtained (1978). CI-356, ney.” Informal Ethics 57 Mich St B J 733 4 See, States, e.g., 1199; 201; Massiah v 12 L United 377 US 84 S Ct Wade, 1926; (1964); 218; 18 United States v 2d 246 388 87 S Ct Ed US Williams, (1967); 1232; 51 Brewer v 430 97 S Ct L Ed 2d 1149 US (1977), reh den 431 L Ed 2d US 925 424 5 (CA e.g., Wolff, Coughlan v See, 1974); 8, Moore v F2d 35 495 Maxwell, States, (CA 9, 1968); Arrington v United 391 F2d 371 (CA 6, (CA 6, 1969); Dority, States v United F2d 849 487 F2d (CA 6, 1974); Reynolds, United 1973); United States v v 496 F2d 158 States, (CA 5, 1970); Loy, v United States De Wilson F2d 900 (CA 5, 1968), (1969); United States den 393 US 1069 cert 398 F2d 331 (1972); Springer, (CA 7, 1972), v cert den 460 F2d 1344 409 US (CA 7, 1971), Crisp, United States v den 402 US 947 cert 435 F2d Crook, (CA 1974); (1971); 3, United United States 502 F2d 1378 1978). Brown, (CA States v 569 F2d 236 People v Green Dissenting Opinion Levin, J. of a rogation represented by his absence once adversary proceedings have com- menced.6

Still other courts have indicated that the Sixth Amendment to counsel can be waived aby individual, represented being but that read a stan- dardized form of Miranda provide does not necessary intelligent information for an understanding waiver.7 The standardized form of Miranda states: right

"You have a to talk to a before answer- ing any questions lawyer present you and have the to a have you you answering while are these questions. If you lawyer, cannot afford to a hire one will appointed represent you questions before if you wish one.”

A pro forma offer to appoint lawyer for a defend- ant already who has one indicates that advice that form is These perfunctory inappropriate.8 courts, stressing Supreme Court’s statement Williams, Brewer v 387, 404; 1232; 430 US 97 S Ct (1977), 51 L 424 Ed 2d strict standard "[t]his applies equally alleged to an the right waiver of 6See, Durham, (CA e.g., 7, 1973); United States v 475 F2d 208 (CA 3, Jersey, United States ex rel O’Connor v New 405 F2d 632 1969), Yeager O’Connor, cert den sub nom (1969); v 395 US 923 Smith, (CA 628, 1967), United States v 7, cert den 389 379 F2d 633 1967). White, (1967); (CA 1, Hancock v US 993 378 F2d 479 The Court Williams, supra, p 405, in Brewer v declined to whether decide right to counsel could be waived without counsel. notice to 7 (CA Eyman, See Schantz v 9, 1969); United States v 418 F2d 11 Carlson, Satterfield, (CA 9, 1970); 423 F2d 431 United States v 417 F (SD NY, (CA Supp 1976), 2, 1976); aff’d 558 F2d 655 293 United States Miller, (ED NY, Lopez Supp 1977); v 432 F United States ex rel 382 v Zelker, (SD (CA Supp NY, 1972), aff'd 465 F2d 1405 344 F 1050 Praetorius, 1972), (1972); cert den 409 US 1049 United States v F 457 (ED NY, States, supra Coughlan Supp (Hamley, 1978); United 329 v fn 5 Brown, J., supra (Simpson, dissenting); United States v fn 5 J., dissenting). 8 Zelker, Lopez supra, p See United States ex rel v 273 Mich Dissenting Levin, stage of at trial or at a critical whether

counsel in-depth inquiry an proceedings”, require pretrial waives made a defendant similar when at trial. of counsel assistance "[The defendant] dangers and disad- be made aware should record so that vantages self-representation, doing 'he knows what is will establish open’. Adams v with eyes choice made is McCann, rel [269,] United States ex US (1942)].” Ed 143 ALR 435 236; 87 L S Ct [63 California, 806, 835; 95 S Ct Faretta US (1975).9 to this 2525; 45 L Ed 2d Adherents require explanation position minimally would charges against the nature of the the defendant of how him, possible punishments, range can him. assist reflects the This constitutional debate on-going a liti- protecting attach to high importance many of his adver- approaches from gant, only well- folly from the his own lawyer, but sary’s meaning generally and the unfortunate initiatives ignorance. concept of his The same consequences 7-104(A)(l).10 in DR reflected

II Profes- The lead that the Code of opinion states Rules Responsibility Disciplinary sional and the designed "proper protect "attorney[s]”, are functioning legal public”. and "the of the system” ment of due should be 104 of the Code of Professional attorney. self only through 9 See "[T]he "Party”, process suggest ensuring People DR same considerations present during 7-104 v 61 Minn L Rev Anderson, that contacts party’s ** that if a *, own accordingly, 398 questioning counsel Mich party Responsibility fairness that underline opposing does have or in his protects of his 247 NW2d attorneys Applied presence.” client a lawyer, party against by will (1976). an the Govern- Note, that take opposing concept lawyer place him- 7- Green Dissenting Opinion by Levin, J. opinion acknowledging any The any citizen, avoids that

plaintiff, any defendant, individual hu- being man protected who is not a has an interest Having

by the code. failed to acknowl- edge anyone pro- that other than a has a grips interest, tected it need not come to with the protection effective of that interest. purpose primary

A of the rule is to "shield the party”, opinion not, states, adverse as the lead party’s attorney”: "adverse "The prohibition reasons for such a equally are clear. They arise out of the nature of the attorney relation of equally imperative and client and are in the interest of the preserve party adverse and of his attorney. To proper functioning legal profession of the as well party improper as shield the adverse from approaches the Canon is wise and beneficent and should obeyed.” Ethics, ABA Committee on Professional (1934) Formal (emphasis supplied). emphasis protection people goes on the beyond public reputa- abstract concerns about the general society; tion of the bar and harm to recognizes concretely code harmed individuals can be violations of ethical standards. This is throughout a recurrent theme the code and the opinions of the ABA committee.11 holding improper In prosecuting attorney it for a represent subsequent parties in a civil action one of the involved in an investigated automobile accident which he had in his official capacity, the committee said: investigation prosecutor "The ostensibly was in the exercise authority; persons, may official information was obtained from who felt, quite naturally, respect have under a sense of coercion or person supposed power. may actual or later sued as a tortfeasor thus have disclosed facts inimical to his best interests in a civil unshielded, Unsuspecting, disadvantage, action. submitted to and at serious interrogation later, opposing one who as counsel in a action, might knowledge acquired against civil use the him. thus approaches by private practice improper; "Such an are they prejudice are calculated to mislead to his party repre- 405 Mich Opinion by Dissenting Levin, it consists of entity; is not an abstract public of the intended beneficiaries who are individuals of the conduct regulating actions in the Court’s for the Court It the bar. would be anomalous the pub- of "protection for the acting claim to be administration of of "the lic” and in the interest cases to refuse in individual and then justice” by are not harmed persons particular assure that protect cannot practices; the Court unethical individuals. public except by protecting individuals purpose protecting of The code’s unethical behavior becoming the victims of from role in its assume an active has led courts enforcement, discipli- mere going review beyond reach courts. may proceedings nary possible disciplinary and await Rather than sit super- exercised their the courts have proceedings, undo the dam- cases to power particular visory beings. individual human age caused counsel, authority on the required Courts have canons,12 rules and to choose counsel, provisions contrary The wisdom of Canon 9. sented to the emphasized Opinion 108. of this Canon is lawyer making approach sanction or color “If the does so under certainly disqualifies power, thereby himself from more of official later or potential having any litigation participation its basis in as counsel in civil previously investigated as to its with the occurrence connected Ethics, aspects.” criminal ABA Committee on Professional (1935) Opinion (emphasis supplied). Formal See, also, Formal contemplated lawyer accept employment or in "A shall not pending litigation or a if he knows or it is obvious that he witness, ought except may under firm as a that he his take the called may testify: employment lawyer in his firm and he or a "(1) testimony solely uncontested matter. If the will relate to an “(2) formality solely testimony If the will relate to a matter will be offered there is no in to believe that substantial evidence reason opposition testimony. to the "(3) testimony solely nature and value If the relate to the will legal to the or his firm services rendered in the case client. "(4) hardship matter, a substantial As to if refusal would work People v 307 Green Dissenting Opinion by Levin, J. withdrawing having from the case and between testimony admissible on behalf of his otherwise required only client barred. This has been civil,13but also in where the rule criminal cases applied prosecuting has been to both defense14and attorneys.15 pursuant discipli-

Courts have also acted to the nary cases, canons, in civil and criminal rules and both protect client when his a former subsequently represents an adverse interest.16 Law- of the distinctive value of the or his firm on the client because 5-101(B). particular as counsel in the case.” 13 Case, Attorney as Witness for 9 ALR (CA See Anno: Client Federal 500; see, States, 7, e.g., Fed Christensen v United 90 F2d 152 (CA 1960), 1937); 7, Clancy, v 276 617 United States F2d rev’d on grounds 312; 645; (1961); other 365 US 81 S Ct 5 L Ed 2d 574 United Porter, 19; (1970); App v States 139 US DC 429 F2d 203 United States (CA Buckhanon, 8, 1974); Phillips, v 505 F2d 1079 United v 519 States (1976). (CA 5, 1975), 48 423 F2d cert den US 1059 14 Witness, See, e.g., Anno: Defense 52 ALR3d See Counsel as 887. Smith, 897; People App Rptr (1970); v 13 Cal 3d 91 Cal 786 Fish v Commonwealth, 761; (1968); People Kuczyn 208 Va 160 SE2d 576 v ski, 320; (1961); Bechtelheimer, 23 Ill 2d 178 NE2d 294 State v 151 582; (1940); 837; People Attaway, App Kans 354 NE2d 448 309 A2d 135 100 P2d 657 v 41 Ill 30 Conn 3d (1976); (1973-6), 211; 349; Anonymous Supp State v Ct, 1973); Stratton, (Superior People App v 64 Mich (1975); Johnson, 212; App 235 NW2d 778 v 46 Mich 207 NW2d (1973). 914 15 Witness, See, Prosecuting Attorney See Anno: 54 as ALR3d (Ct e.g., McCuistion, 94; App, 1975); State v 88 NM 537 P2d 702 State (Mo, 1971); 135; Hayes, People, v 473 688 SW2d Wilkinson v 226 Ill 80 (1907); People 392; (1932); Schraeberg, NE 699 v Ill 347 179 NE 829 State, 68; (1947); Blydenburg, Adams v 202 Miss 30 So 2d 593 State v 264; 135 Iowa 112 634 NW 16 may attorney’s "The comment be made that an misconduct is not give only questions involving so limited in its effect as to rise nature, attorney’s professional representative, wrongful practice being, by status: the of law its part attorney acts on the of an will inevi tably upon touch of his clients and of his adversaries. "Thus, may it be noted that in at it least one case has been held that, note, attorney, attaching represented persons where an client, whose interests were adverse those of a former the attach- Giles, against public policy. ment was void as See Malia v 100 Utah (1941).” 562; Propriety Attorney 114 P2d 208 Anno: and Effect of Client, Representing Interest 52 ALR2d Adverse to that of Former 1243, (emphasis supplied). See, also, Representation Conflicting Disqualif Anno: as Interests ying Case, Attorney Acting From in a Civil 31 ALR3d 720: 405 Mich 273 Dissenting Opinion Levin, yers disqualified in such circumstanc- have been lawyer’s judgments es,17 in favor of the new pro- necessary when client have been reversed effectively tect the interests of the former client.18 represents "Generally, may two it be said that where an adverse, may simultaneously court clients disqualify and their interests are * * *.” appearing him from in the case 17See, Corp, e.g., Westinghouse Corp 580 F2d Electric v Kerr-McGee (CA 7, 521; (1972); 1978); Latigue, State v 108 Ariz 502 P2d Tacoma, 532; Alpha App Investment Co v 13 Wash 536 P2d (1975); Wahl, 532; (1958); Wilson v 182 Kans 322 P2d 804 GAC 186; Inc, Corp Mahoney Typographers, App Commercial 238 NW2d 575 66 Mich (1975); (1970); (1975); Rizzo, 350 A2d 225 State v NJ 505; Reading Co, App v 22 Mich 177 NW2d 662 Auseon Harmar Drive-In Brass Pictures, Inc, Theatre, v 239 F2d Inc Warner Bros (CA 2, 1956), (1957); Harper, 555 Fullmer v 517 217 NW 909 reh den 241 F2d 937 (CA 10, Ashman, 534; 1975); Wingilia F2d 20 (1928). v 241 Mich (CA Industries, Patentex, Inc, 562, 571, In Emle Inc v on the basis 478 F2d 575 ("A 2, 1973), preserve Court, of Canon 4 should client”), disqualifi- the confidences and secrets of a affirmed litigation lawyer representing plaintiffs patent because cation of a of previous representation part-owner of a defendant. Ac- a of knowledging choice of counsel and that some patent step deprive it a serious an individual of his is possibility monopolization of of the existed, bar the defendants the court declared: subtle, dynamics litigation attorney’s "The of are far too role in critical, process public’s is far too and the interest in the slightest great too for even the doubt outcome far leave room concerning propriety lawyer’s representation in a the ethical of a given require application pro- case. These considerations of a strict phylactic prevent any possibility, slight, rule to however that confi- acquired during previous dential information from a client a relation- ship may subsequently disadvantage. be used to the client’s "* * * Nothing Responsibility in the Code of or in the Professional Code, teaching like its moral firm ing generalities’. Supp prior relativity, cases warrants such ethical for the Ethics, predecessor up high the Canons of a Professional 'set[s] * * * standard, applicable fiduciary. akin to that Without to a support, judicial only the Canons of Ethics would be reverberat School, States, Empire Linotype F Inc v United 143 (SD 1956).” added.) NY, (Emphasis 633 18 See, Co, e.g., Bugg 809; v Chevron Chemical 224 165 SE2d 135 Ga (1968); App P2d 999 Burns, (Mo, 1959);People Curry, State v 322 736 v 1 Ill SW2d 87; Chambers, 383; (1971); 3d 272 NE2d 669 State 86 NM 524 v (Ct 1974); (1974); App, 372; cert den 86 NM 524 P2d 988 State, (Miss, State, Sharplin 1976); v 330 So 2d 591 Burkett v 131 Ga 662; (1974); Kester, 262; App App 3d 337 206 848 v 33 Ill SE2d (1975), (1977); 162; NE2d 44 aff'd 66 v Ill 2d 361 NE2d 569 State People v 309 Green Dissenting Levin, cases,

In criminal courts have found the Code of Professional Responsibility an independent basis for disqualifying prosecutor a from handling a case personal because of a or other relationship with making accused it inappropriate for him to Also, prosecute.19 quashed indictments have been dismissed, or and convictions reversed or habeas corpus granted.20 relief in In re 1977

Recently, April Grand Sub Jury (CA 6, 1978), poenas, 573 F2d 936 panel a Appeals United States Court of Sixth Cir cuit found that General’s Attorney appoint ment of an Internal Revenue Service grand investigation conduct jury General Motors was violative of Canon 9 of the Code of Leigh, 549; (1955); Bishop, 289 Kans P2d 774 United States v (CA 6, 1937); State, 182; F2d (1926); Ward v 33 Okla Crim 242 P 575 Farnsworth, 504; (1928); Tilley Baker v Neb NW 17 v King, 421; 190 Ga 9 SE2d 670 Disqualification Prosecuting Attorney See Anno: on Account of Accused, Relationship See, e.g., Leigh, 31 ALR3d 953. State v 549; Burns, (Mo, (1955); 178 Kans 289 P2d 774 State v 332 SW2d 736 1959); Broadman, 436; App (1967); Young Corbin v 6 Ariz 433 P2d 289 State, (Fla App, 1965); Latigue, supra; v 177 So 2d 345 State v fn 17 People Rhymer, App (1975); 32 Ill 3d 336 NE2d 203 State v — Britton, supra; —; (1974); State, W Va 203 SE2d 462 Burkett v fn 18 Chambers, supra. State v fn 18 Supreme compel The California Court denied writ to a trial court permit to prosecute a district accused of a conflict of interest charge. People Superior a criminal Court of Contra Costa 255; County, Rptr 19 Cal 3d 137 Cal The P2d attorney general argued district process its disqualify that the court could not the attorney unless there would he a violation of "minimum due Invoking standards”. the Rules of Professional Conduct and supervisory power, the court affirmed the trial court’s of order disqualification. The court said: attorney’s participa- the trial court that a "[I]f determines district filing complaint hearing tion in preliminary the of a criminal or the complaint potential appearance on created a for bias or the aof interest, may 'legally conflict of committed’ gruity it conclude that defendant was not * * Attorney *. The General himself concedes the 'incon- ordering prosecution the district removed from the ” setting attorney.’ but not aside the information filed the district Id., p 263, fn 5. 20Anno, supra, 953, 984, fn 19 31 ALR3d 986. Mich 273 Dissenting Opinion Levin, J. stated that panel The Responsibility. Professional a civil investi- IRS who had conducted the had gation of General Motors position. conflicting in a and intolerable placed "been * * * is prosecutor also to function of the "[T]he prosecution. against criminal protect citizens unfounded worry is that IRS "In the of GM present case [the lawyer] grind axe and is more interested has an previous investigations, justifying his his recommenda- tions, agents protecting IRS than in and the conduct of Id., prosecution.” p against GM unfounded criminal en banc reversed Sixth Circuit While the ground that procedural on the panel’s opinion was what appeal improvident,21 certification of is the relief that present purposes is relevant panel The appropriate. the Sixth Circuit deemed cause be remanded "with panel ordered grand investiga- jury instructions to terminate necessary protective enter invalid, and as tion grand jury orders to the use of the infor- relative Id., p mation". (emphasis supplied). in In re Karabatian’s Appeals, Court

Estate, 541, 546-547; 170 17 Mich NW2d 166 App (1969), that a who a will under held drafted which was with- beneficiary he was substantial out later standing "[Apparently contest a will: do not If an so warnings attorney’s suffice. conduct ethics, it spirit lawyer’s violates code of public also this contrary policy runs to the void, state. he has bequest being to contestant no standing (Emphasis to contest the later will.” supplied.)

One theme runs factual cir- through varied (CA 6, 1978). 584 F2d 1366 311 Green Dissenting Opinion by Levin, J. cumstances and results of these cases: courts do on rely disciplinary proceedings alone to effec- tuate purposes of the Code of Professional Responsibility.22 They will do what is necessary to undo the results of unethical behavior and thereby protect individuals who have may been harmed by such behavior.

Ill I have not found single a civil case in any jurisdiction in which a court has suggested that disciplinary proceedings are the only appropriate and available "remedy” for a who has party been directly harmed by conduct violative of DR 7- 104(A)(1). cases, In civil the courts have acted to protect individuals who would otherwise have been victimized by violations of the rule.23 22 Supreme The Ohio against Court declared that action the violator is not Cuyahoga County the sole relief available in Board of Mental Cuyahoga Retardation v County Association of Teachers of Retarded, 28; App (1975), Trainable 47 Ohio 2d NE2d arising under the Code of Judicial Conduct. The court ruled that the judge’s breach of the code rendered all of his actions null and void: reaching begin "In this conclusion we with the fact that Rule IV of Supreme Court Rules for the Government of the Bar of Ohio provides that 'binding’ upon Canons of Judicial Ethics are all * * judicial officersof the state *. persuaded 'binding’ 'mandatory’ "We are not that these stan- empty dards were could judge intended to be admonitions which trial a openly disregard subject only retrospective disciplinary ac- against himself, upon tion improper with no effect actions which designed protect Rather, against. the canons were we find design purpose impose of the Code of conduct was standard upon judges they Id., pp to which must conform.” 33-34. California, 525; In Mitton v Rptr State Bar of 71 Cal 2d 78 Cal (1969), plaintiffs 455 P2d in an automobile accident violating professional by conferring case was accused of ethics with a represented by lawyer concerning motion defendant’s jury against a new trial appears after a verdict her. It that with no given lawyer, notice with new trial Defendant time the plaintiffs lawyer conjunction to defendant’s up stating defendant drew a declaration that the motion for a against was without defendant’s consent and her wishes. signed this declaration. The declaration was offered at the hearing. hearing judge motion for new trial was set for 405 Mich Dissenting Opinion Levin, 7-104(A)(1)’s in apply equally prohibitions

DR principled no There is and civil cases. criminal civil, but crimi enforcing the rule basis for in criminal cases are nal, stakes Since the cases. put tends to higher, and incarceration generally prosecu the to seek out pressure under defendants effort to generally hapless in a torial authorities de themselves,24 protecting need for the extricate compelling. is in criminal cases fendants most committees and ABA ethics Michigan Both the vio distinction between have refused to draw any cases.25 the rule in criminal civil lations of bar, state only to attention of the but not refused lawyer called this incident the accept declaration because defendant’s to or consider the not been notified or consulted. had ' Ct, 1949), App Adelson, (Sup aiFd 276 Div 96 NYS2d 817 In Obser v (1950), 999; suppress was 757 motion to evidence at issue. 95 NYS2d a injured a of brought infant as result An was on behalf of an action alleged negligence. retained who advised The infant’s father a lawyer was also the claim. Defendants’ notified defendants of infant’s representative plaintiffs lawyer. Subsequently, of the a of defendants’ claim from infant’s a the mother. obtained statement "suppressed and that the The defendants be not directed the statement be court permitted any purpose to same for whatso use the Id., p ever.” See, also, Baker, App, (Mo, 338 St Louis Chilcutt v 355 SW2d Ct 1962). 24 counsel, question to the has Once a defendant exercised depend on the out of waiver of his counsel’s assistance should not come 'swearing happened the "almost contest’ over what of inevitable Israel, Kamisar, closed LaFave & Modern Criminal behind the doors”. (4th 479, ed), See, also, Hobson, People p 513. v 39 NY2d Procedure 894, (1976); 484-485; 419; v NYS2d 348 898 United States 384 NE2d (1967); Wade, 218, 229-231; 1149 US 87 S 18 L Ed 2d 388 Ct 712, 514-515; Sparrow, A2d 725 Commonwealth Pa 3, supra. See fn (1976) Opinion In Informal the ABA committee considered propriety prosecuting mailing plea attorney to both a of a a offer lawyer. defendant and his The committee concluded: committee, sending copy "In of to the view of the a offer * * * 7-104(A)(l). defendant is unethical in that it violates recently "The committee had occasion Informal rule in context The committee held consider the that it party of a civil matter. improper original going copy a a settlement offer the other was to send * * (the attorney) We see no valid *. v Green Dissenting Opinion Levin, J. if rule’s heart of the matter is that achieved, to be protecting people purpose of the rule must be evidence obtained violation against a proceedings suppressed. Disciplinary harm caused not undo the attorney do prosecuting not have been might otherwise an individual who convicted. what,

Further, grievance if any, it is uncertain left to the taken. It will often be action will be ethical viola- report defendant or his It proceedings. initiate flies tions and to risk expect in the face of reason to imagined displeasure actual or prosecutor’s that cannot benefit instituting proceedings directly him. The defendant believe may unreasonably case in adversely such action will affect his subse- trial, appeal at on or at a quent proceedings later following appeal, retrial an or his chances parole.

It that cause of unlikely a defendant has Even if damages against prosecutor.26 action for a few think remedy, has such a will compen- that a of liberty adequately loss can be sated, here, defendant has especially, as where the imprisoned been for life. Co, v H B Sherman 419;

In McAvoy 401 Mich (1977), 258 414 recognized NW2d this Court providing need for The Court effective remedies. fact, reason for a different result in criminal matters. In there are perhaps stronger policy copy of a considerations in criminal cases. A sample letter such as the ing the effect of influenc- furnished could have plead guilty a defendant indictment to a crime for which no might ever be of his returned. The defendant should have the advice (Emphasis counsel at hand him.” when such an offer is transmitted to supplied.) 26 (1977), see, Levit, 117; e.g., Legal Malpractice Cf. Mallen & § (ED Coal, Inc, Merritt-Chapman Corp Elgin Supp 17 & Scott v 358 F (La Tenn, 1972); 1976); Spencer Burglass, App, Noble v 337 2dSo Sears, (1973); Co, 654; Rptr App v & Roebuck 33 Cal 3d 109 Cal Arnold, Allen, Tingle App Cate & 129 Ga SE2d 405 Mich Dissenting Levin, sustained the action of the Compensation Worker’s Appeal dismissing Board employer appeals for of a requiring violation statute an payment during employer’s appeal to a claimant of 70% weekly benefit rate hearing ordered referee. The statute did not explicitly require or authorize dismissal. Other might remedies have been em- such as of an ployed, entry enforcea- immediately ble held, however, Court monetary judgment. This purposes of the statute would be rendered meaningless unless board could dismiss appeals of those who violated the statute.

In the instant meaningful case the only remedy is suppression of the unethically obtained evi- dence. The Court cannot justify promulgation 7-104(A)(l), designed protect people, often themselves, but, from occurs, when actual abuse failure to protection enforce that in a meaningful manner.

An excuse is sometimes offered that the overrid- ing importance disclosing the truth justifies a court’s failure to suppress illicitly obtained evi- dence. But our legal on system operates princi- ple goal is the ascertainment truth within the imposed limitations Lawyers— law. prosecutors an especially play important role — the administration of justice and thus the Code of Professional Responsibility regulating their con- duct in relation to those who encounter the system part of the very fabric of the There can be law. no system ordered protec- law if those for whose tion the code has been promulgated are not effec- protected tively from harm caused its violation. by No lawyer should permitted be to advance his client’s cause with evidence from another obtained lawyer’s client in designed violation a rule as a safeguard against violation. very People 315 v Green Dissenting by Levin, J.

Courts have evidence in criminal suppressed 7-104(A)(l) where a of DR has cases violation occurred. Thomas, United States v 110,

In F2d (CA 10, 1973), a written statement was obtained from in the defendant the absence of and without knowledge lawyer. of his The statement was requested obtained at an interview the defend- signed ant at which he read and a Miranda-type waiver of form. The Court held that required suppression ethical violation of the state- ment: criminal has either retained an defendant

"[O]nce attorney attorney appointed an for him or had court, any by interview from such statement obtained any pur may not offered in evidence for pose the accused’s was notified of the unless given produced interview which the statement and was present. hold other opportunity a reasonable to be To wise, think, we conduct which would be overlook spirit violated both the letter of the Canons something the de obviously Ethics. This is which (Emphasis supplied.) fendant alone can waive.” v People The New York Court of Appeals Hobson, 419; NY2d 384 NYS2d NE2d (1976), held constitutional that New York’s protections27 custody, prevented a defendant represented right waiving from lawyer, counsel Court the absence of his lawyer. violation, said apart from the constitutional under statements should have been excluded the Code of Professional Responsibility: statutory The court identified the "State’s constitutional self-incrimination, guarantees privilege against to the Hobson, counsel, process assistance of and due of law”. supra, p Michigan’s recognizes protects the 483. Constitution 1, 13, 17, same art values and interests. Const §§ 405 Mich Dissenting Opinion by Levin, J.

"Moreover, attempt an to secure a waiver of right the of counsel lawyer, already proceeding criminal in the absence of a assigned, retained or would constitute a professional ethics, breach of itas would be in the least- (see consequential civil matter ABA Code of Profes- * * 7-104, sional Responsibility, [A][l]) subd *. Since the Code of Responsibility applicable, Professional is it grossly incongruous would be for the courts to blink its ” Id., violation in a pp criminal matter. 484-485. The Court explained then it is why important 7-104(A)(1): enforce DR principle much, is important is, not so "[T]he as that preserve to individual, decencies, the civilized protect but the ignorant uneducated, often and always fear, when police faced with power the coercive State. The to the lawyer, continued advice of a already against assigned, retained or protection is his real power an organized abuse of State. It is important more preinterrogation than the warnings given to in custody. defendants warnings These often provide only a feeble opportunity to lawyer, obtain a suspect because the or required accused is to determine need, his heart. by anyone unadvised who has his interests at danger only the risk of unwise waivers of right privilege against self incrimination and of the counsel, significant but the more risk of inaccu-

rate, false, sometimes inevitably incomplete de- scriptions of Id., the events p (emphasis described.” supplied).28 28In both Thomas police and Hobson the statement was made to a government’s officer and present. was not The courts violated, nevertheless concluded that rule had been and that suppressed. the statement should be is that rationale police, prosecution, after acting commencement of are as investi gators prosecutor. Opinion People See ABA 95 and v Patter son, (1972) App P.J., (Levin, Mich 198 NW2d 175 dissenting). Wedra, (SD 1972), See Supp NY, United States v 343 F where questioned the defendant was in the absence of without the the knowledge attorney. being given warnings, After Miranda defendant the replied was asked if he cared to make a He statement. negative, questions. sought but did answer a series of Defendant v Green Dissenting Levin,

IV intends to cir- the Court do not believe I it the that cannot powers its to extent cumscribe Responsibility the Code of Professional enforce proceedings. Just through except Inc, Arc-Mation, 402 Mich ago, in Smith v year (1978), the indicated its 713 Court 115; 261 NW2d in to enforce the canons individual willingness Although no of the can- we found violation cases. warranting disqualification, attorney’s the ons answers, government suppress the contended were which to suppressed, finding falsely exculpatory. that defendant did The court counsel to remain silent. The his constitutional to not waive court offered as sory ring Ethical supervi- ground ("[e]ntirely apart”) independent its an suppress power unethically After refer- to statements obtained. Responsibility, 9 to old Canon and the Code Professional 7-104,the Consideration 7-18 and DR court said: denouncing point in- "I see little in well-intentioned utterances person represented interrogation custody to be of an accused known present, affording opportunity an to be or without counsel counsel interroga- condemning prosecuting attorneys part in such who take in tion in ment to become allowing govern- professional violation of ethics and then beneficiary only of the condemned conduct. practice way at unethical this unfair and times effective terminate Id., government using prohibit pp illicit fruits.” from its is 1188-1189. Brown, J., See, also, supra (Simpson, fn 5 dissent- United States v States, J., dissenting). supra ing); Coughlan (Hamley, fn 5 v United also, See, Springer, supra; 5 v United fn and United States States v Smith, supra, recognized they had fn 6 the courts where authority chose not 9 to exclude obtained in of old Canon but evidence violation to. (CA 9, 1968); States, v 405 F2d State v But see Reinke United (Fla McConnell, Yatman, 1975); App, 529 SW2d 320 So 2d 401 State v 1975). (Mo Richmond, App, P2d 41 2d 185 (1976), 415; In State v 114 Ariz Nicholson, (1977); Wash State cert den 433 US 915 (1969), cases 7-104 criminal 463 P2d 633 the courts refused in evidence, unethically finding suppress that DR obtained protection litigants. designed Crook, ing a criminal of only held that it was In United States v to afford to civil supra, precluded from exercis fn 5 court supervisory power unethically obtained in its to exclude evidence by the Safe Streets Act case Crime Control and Omnibus 90-351; 3501(a), provides that the trial PL which "[i]f USC voluntarily it shall judge was made determines the confession * * in evidence *”. admitted 405 Mich Dissenting Opinion Levin, there was no hint that a court could not act pro- cases before it but must await disciplinary ceedings. of such a

Adoption limiting might rule of law prevent, example, a court granting relief to an charged an contingent individual excessive fee in 1963, 928, violation GCR adopted pursuant the same supervisory authority as the Code of Professional Responsibility. The Court surely does intend such far-reaching yet results and they implicit are holding proceed- that disciplinary ings are proper for violations only remedy Court-promulgated standards.

If the Court chooses later to avoid such results by holding that the code is enforceable civil cases, cases but not in criminal inor some crimi- nal cases, will, cases but not first-degree murder it think, I be extremely difficult to advance a princi- pled basis for such a distinction. 7-104(A)(l) was violated in this case. As a

result, the prosecutor who violated the rule ob- tained statements he might not otherwise have obtained which were against used Green. DR 7- 104(A)(1) is designed protect people, not abstrac- tions. This Court should protection effectuate that in the only way which meaningful would be in this by reversing Green’s conviction and ordering case — a new trial at which his statement would be suppressed. notes this took discussion and ant if he told the truth. at the had whole end asked defendant the objected The said he had. defense to admis- The defendant evidence, objection the was sion of the statement into but the admitted. The defendant was overruled and statement was Court, Temp- jury by Robert a Circuit L. convicted in Oakland Gillis, lin, J., first-degree Appeals, The J. H. of murder. Court of (M. J., j., Holbrook, Jr., Cavanagh, dissenting), F. P. D. E. and 25298). (Docket appeals. Held: No. affirmed Defendant agreed unanimously prosecutor vio- that the had The Court part Responsibility when he took lated the Code of Professional questioning notifying defense the without counsel. agreed exculpatory justices the state- Four that exclusion of code, required by and the violation of the that the ment is not prosecutor of due action of the assistant was not violation process The is affirmed. of law. conviction Coleman, Ryan concurring, wrote Chief Justice with Justice separately: presence request speak 1. the The defendant’s out of of his prosecuting necessity attorney the for the does obviate attorney attorney notify and obtain his the defendant’s Responsibility. is under the Code of Professional There consent prevention prohibition just more the of to this ethical than rights overreaching: party’s the the and interests of adverse functioning legal system attorney proper and the are well. initiative and insist- involved as While this defendant’s speak presence attorney ence the that he out of the of his overreaching by prosecuting attorney lack of the assistant are mitigation, they do not excuse factors to considered compliance .pre- professional the standards of conduct by scribed the code. Responsibility provisions of The of the Code Professional rights statutory guaranteed are to individ- not constitutional or persons. self-imposed regulations They ual internal are instead prescribing members of the bar. standards of conduct for provi- Although principal purpose many true of it is that the protection public, remedy for a sions is the violation against traditionally disciplinary has bar action been internal offending admissibility attorney. in a court of evidence law, hand, normally applicable on the other determined v Green statutory provisions, constitutional and rules and com- court Responsibility mon-law doctrines. The Code of Professional plays part discipli- no in such decisions. The violation of the nary disciplinary rule should be dealt with bar action to insure that future violations do not occur rather than withholding jury. relevant and material evidence from the tell, story 3. In this case the defendant had he wanted to presumably charge lodged to clear himself of the murder against him. He sent word the authorities and asked to speak with them. He waived his constitutional with full knowledge doing, specifically of what he was stated that he present. attorney wanted to talk without his The assistant prosecuting attorney except and the detective did little listen to say what the defendant had to and take notes. defendant’s completely voluntary statements were and there was no over- reaching truth, telling kind. When if he asked was defendant said that he was. Reversal of the conviction grant solely of a new trial because of this violation of the disciplinary appropriate response, rule would be a less in cases this, against such as than bar action directed offending attorney. Although presence prosecuting of a assessing

Case Details

Case Name: People v. Green

Court Name: Michigan Supreme Court

Date Published: Jan 26, 1979

Citation: 274 N.W.2d 448

Docket Number: 59674, (Calendar No. 3)

Court Abbreviation: Mich.