*1 Department December 1969.] 40257. Two. [No. v. Robert W. Washington, Respondent, State
Nicholson, Appellant.* for counsel Glein, Richard for (appointed appeal). Harber,
Charles Carroll for respond- O. and Patricia G. ent. eight charged J. The was
Rosellini,
counts, one
three of assault
of assault
in the second degree,
in the first
two of
and two
degree,
rape,
rape.
attempted
on all counts.
was
guilty
first
is that he
denied
His
contention
appeal
him the
interrogated
to counsel when police
* Reported in
absence At the on the testimony concerning statements which he made jail, presented while detained in evidence was prosecution upon trial court *2 interrogation place appellant found that the the took after attorney had talked with an and had been him advised not to make a statement. The trial court further that appellant gave police the the certain information voluntar- ily spite in of this advice. deny does not that there was evidence to
support findings the trial court’s he but contends the that police attorney should have called his and asked him to be present questioning. tacitly at the concedes no case that police duty they has held that the have such a after have person rights advised a under arrest and have opportunity attorney, an him to consult with his he where voluntarily requesting talks to them without that his attor- ney present. imposes
He does not claim that the constitution police. such a However, the contends police person that a situation talk to a where in their charge represented by attorney analogous is an who to a attorney oppos situation where an ain civil case talks to an ing party represented by who is counsel. part prohibited by
Such conduct of an canon of 9 the Canons of Professional Ethics. That canon reads: lawyer any way upon A not should communicate subject controversy party represented a with negotiate counsel; much less should he undertake to compromise him, the matter but with should deal lawyer with his It is counsel. incumbent most particularly everything to avoid tend mis- party represented by lead a counsel, not and he should him
not to advise as to undertake the law. According theory, agents appellant’s police prosecutor’s they client, state, of the while are not prosecutor, per- he under the control they mitted use the fruits their where for way be unethical would in a obtained prosecutor them. to have obtained himself any opinions of the cite does not While Eth- on Professional Committee Bar American Association opin- those have examined contention, ics to theory applicability of canon ions find obtaining an arrested from evidence body. police However, been advanced never opinion on the asked to deliver committee has been question of a munici- officer is ethical for whether it pality permit statements to take city, against plaintiffs, after their have filed claims placed for of an in the hands claims have been knowledge. The attention, officer has of which the law course of conduct that this committee was Comm, Opin- Ethics, ABA, on Professional was unethical. ions, The committee said: No. *3 relationship existing It be- clear, think, is we that the municipality and the munici-
tween the law officer of pality attorney . is and client. . . itself that lawyer upon a If, 9, as stated in Canon “It is incumbent everything may particularly tend most avoid party represented by it counsel,” fortiori, mislead a a clandestinely lawyer attempt is not to encumbent a represented practice party is coercion on who explanation, is well counsel. be Whatever injuries against municipalities are known that claims for many brought by ignorant poor, even illiterate times persons. having police or The detectives type put persons of is them at a serious interview this disadvantage. say that the same result would Who can intelligent educated. not obtain if the client were layman intelligent lit- Even the tle of and educated knows but legal policemen procedure. presence of or de- The average tectives, role, connotes, in such a rather to the layman, Obviously of a criminal matter. practice reprehensible. such responsible is, course, officer for the acts department supervision are under his
those and control. Opinion In Y. Robinson, 85. re 136 N. S. 209 N. (affirmed 354-1912) Y. held that it was a matter attorney general adopt disbarment for an approving course of employees unethical conduct of his though actively participate client, even he did not therein. unavailing
It be would to contend that supervision officers or detectives are not super officer, control of the law vision and control of the but rather under the municipality. “The not advise sanction acts his client which he Opinion himself should not do.” Canon 75. 16 also sets persists improprieties contrary forth if a client attorney, lawyer the advice of his should terminate relationship. Opinion People 44. ex rel. Colorado Bar (2d) White, Association vs. 306, Colo. 1P. 577. Furthermore, of an is not confined solely obligations respecting to his client. He has some among court and his bretheren at Canon the Bar. things, other deals with candor and fairness to other lawyers. part Such conduct law officer of the municipality dealing not, think, with a brother lawyer with candor and fairness. opinion question
In the should, the committee negative. therefore, answered in the understanding gist opinion Our this is that public attorney op- should refrain from intimidation of an posing party taking advantage just of him, unfair as a private attorney compatible should. This view is with the Supreme taken view United States Court interrogated court that defendant has not to be presence without the of his counsel if he desires to have his present, right. counsel that he must be advised of that But we do not think that the there rendered can fairly investigating extended to hold officer of the *4 municipality state or never a take statement from a person under arrest. apparently suggested fact that it has never been investigative
before that there is such a limitation powers prove of law enforcement officers does not that it strong exist, does not but it is a indication that such a contemplated by restriction not those who framed the Canons of Ethics, Professional who must have been aware persons ar- under practice taking confessions thought practice commonly accepted were rest. If a such express per se, it would seem be unethical conduct it. to forbid would have been used words guarantees scru- are that, think if the constitutional We give pulously persons not state- observed, arrest under will freely they and voluntar- do to the unless so ments ily, rights counsel and their full with awareness oppression, silent; intimidation remain the evils safely advantage surmised, It can be unfair be avoided. will purpose to civil to assure think, that the of canon 9 was litigants protection from these influences which some of the guarantee to criminal federal state constitutions guarantees Implicit defendants. in those constitutional public bringing recognition an interest in that the justice persons committed crimes and who have investigative powers if must have some reasonable legitimate end A confession is to be achieved. freely voluntarily given probative value, has some
although certainly isit not conclusive. duty pre- public officials,
Law
have a
enforcement
legislative
act,
scribed for them
denied
right
pursue
investigations
point
their
even to
taking
long
confessions, so
as
do not violate
the means used
rights
rights
suspect
the constitutional
otherwise
guaranteed
Young,
to him
law. See State
Wn.2d
(1965), holding
938,
420 appellant
The second contention of
is that there was
evidence to
the verdict on the
insufficient
two
charges
attempted rape.
prosecuting
witness on one
charges
appellant’s penis
testified that the
those
was soft
pressed
against
genitals,
having
when he
her
after
forced
lying
top
her
and lie
he
to disrobe
down
while was
on
victim,
The other
was also
into
her.
forced
the same
position, testified that
did not
she
remember
did not
rigid.
theory
It is
whether it was soft
know
apparent inability
penetration
to
that his
effect a
incapable
attempted rape
in
case rendered him
each
only
indulged
jury
preparation.
he
find that
in
could
Meyer,
37
759,
relies
State
Wn.2d
In the cited
witness was
incompetent
incapable
had,
therefore
of consent. She
attempted
obtaining
however,
to assist the defendant in
an
erection but was unsuccessful.
no
There was
evidence that
purposes
he used force or intimidation to effect his
or that
penis
placed against
body.
her
This court held that
go beyond
stage
preparation
his advances did
attempted rape.
therefore did not amount to
attempt
brief,
As the
states in his
an
commit a crime consist
first,
of two elements:
criminal
and, second,
Leach,
intent
some form of
act. State v.
overt
(1950).
641,
36 Wn.2d
Here the victims, accosted the years age, leading path a wooded area gave going hill, them to down a understand that he was position ain lie down rape disrobe made them them, top them, and lay purpose, designed facilitate attempt unmistakably referable made movements prevented case each purpose. He was effectuate that *6 acts, inability His by erection. achieve an to his own being made The intent ineffectual. short, direct but consummation toward its directed manifest and acts given according in State being to the definition “overt” sup- clearly supra, to sufficient Goddard, the evidence was attempted rape. port counts of on these the verdict identifi- of contention The final prosecuting by witnesses three of the accused cation granted may inadequate a verdict. This was to sustain respondent argument. purposes as the However, for points ample The evidence. out, there was identification girls, the details confessed that he attacked by the the stories told his confession were consistent with corroborating physical evi- victims, to he led physical his ac- evidence corroborated dence, and other the victims. count of and the accounts the attacks testimony assuming of the Even the identification (whom see his three did not allow to victims face) inadequate verdict, that fact does not to sustain require supported other reversal since that verdict evidence. judgment
The is affirmed. J., JJ., C. and J. Pro Ennis, Hale Hunter, Neill, concur. Tern., (concurring signed ap- specially) have Hale, —I
prove majority opinion limit rationale of the but would (1967) operation opinion Bar American No. quoted Association’s on Professional Ethics. Committee obviously opinion although purporting apply No. against municipalities, number of actions recites a civil authority assumptions might, on the instant I case, would, it criminal cases. there- serve to extend regard opinion fore, committee’s as no more the bar than example rather than author- substantive
ity for a declared rule. many govern- municipal state,
In areas federal and spe- impose upon ment, statutes, ordinances and charters government investigate component duty cific investigate prepare the defense of civil claims and to prosecution prepare charges. in- criminal In some creating exclusively place stances, the laws it investigative agencies contemplate one of the and do not government’s referral or intervention office lawyers shortly prevailing until before trial. Under the governmental municipal, scheme, state, whether federal lawyers government well for the participate investigation to be consulted nor to in the until designated agency completed its reports department. submitted its and evidence to the law appears ignore The cited No. 95 and runs contra *7 procedures. to these
Although opinions of the bar committee should be weight considered the courts and accorded the their intrinsic merit and intellectual merit, force these opinions, my ought gov- view, not be allowed control procedures ernmental statute, established charter and ordinance under the constitutions.
Ennis, J. Pro Tern., concurs with Hale,