Different Roles of the Lawyer · 4-10% of the exam
19.2.2Subpoenas to a Lawyer and Prosecutor Publicity (Rules 3.8(e)–(f))
Quick review — Subpoena of counsel and prosecutor publicity (Rule 3.8(e)–(f)) (taught fully in Chapter 15)
Three points on subpoenas and publicity, and the third is the exception to the second.
- Rule 3.8(e): a prosecutor may not subpoena a lawyer in a grand jury or other criminal proceeding to present evidence about a current or former client unless the prosecutor reasonably believes (1) no privilege shields the information, (2) the evidence is essential to the successful completion of an ongoing investigation or prosecution, and (3) no feasible alternative exists — all three, independently.
- Rule 3.8(f): out-of-court statements carrying a substantial likelihood of heightening public condemnation of the accused are prohibited; the prosecutor must also use reasonable care to prevent investigators, law-enforcement staff, and other assisting persons from making statements the prosecutor could not.
- 3.8(f) exception: comments needed to keep the public informed about the scope and character of the prosecutor's action for a legitimate law-enforcement purpose.
Questions · 1
Q 01ch19-e05
Question 1 of 1 · Rule 3.8(e)
Prosecutor is investigating a scheme to launder cash through a chain of car washes. Attorney represents the target of the investigation and sat in on a meeting where the participants mapped out the scheme, which Prosecutor reasonably believes strips that meeting of any privilege. Prosecutor also reasonably believes that Attorney's account of the meeting is essential to completing the investigation. A bookkeeper who attended the same meeting has agreed to cooperate and can describe what was said there in substantially the same detail. Prosecutor issued a grand jury subpoena to Attorney. Was it proper for Prosecutor to issue the subpoena?
Keys 1 to 4 choose.