Ethics Corner
Dear Ethics Committee: I am a prosecutor who currently has a case pending against a pro se defendant. What ethics rules and considerations should I be aware of?
Prosecuting pro se defendants is a significantly more difficult ethical experience under the Rules of Professional Conduct than prosecuting defendants represented by counsel. In these circumstances, the prosecutor has to interact directly with an individual who almost certainly has less knowledge of the law and rules of criminal procedure than an attorney and who at any point could make testimonial statements. Prosecutors must seek to balance their roles as advocates for the state against their obligation to ensure a fair process for the defendant, all while avoiding ethical pitfalls of dealing with pro se parties. These pitfalls include confusing the pro se defendant with what role the prosecutor holds, inadvertently providing legal advice to an unrepresented defendant, improper communications, and breaching a heightened duty of candor to the court.
Fairness
Prosecutors must undertake significant efforts to ensure that they are treating pro se defendants with fairness and transparency. Pro se defendants may be confused about the role that prosecutors play and will likely be unaware of the laws and rules pertaining to the case. They may ask questions about procedure or the law that a defendant would typically ask their attorney. Prosecutors have a duty to ensure that pro se defendants are clearly aware of their adversarial role in the matter. Prosecutors may answer procedural questions, however they cannot provide legal advice or create any sort of impression that the prosecutor is a disinterested party. Rule 4.3 addresses this plainly and provides that a lawyer who is dealing with an unrepresented person:
“…shall not state or imply that the lawyer is disinterested. When the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer’s role in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding. The lawyer shall not give legal advice to an unrepresented person, other than the advice to secure counsel …”
The Ethics Committee previously reviewed this line between legal advice and procedural guidance in 2014 in Rule 4.3 and the Difficulties of Dealing with an Unrepresented Opponent (NH Bar News, June 18, 2014). Now, as then, we recommend that prosecutors be cautious about making seemingly disinterested or objective statements about the pertinent rules or law as, the comments to Rule 4.3 keenly note, “one not experienced in dealing with legal matters might assume that a lawyer is disinterested in loyalties or is a disinterested authority on the law even when the lawyer represents a client.” If the prosecutor wants to do more than just advise the pro se defendant to hire their own lawyer, they must clearly indicate that they have opposing interests to the pro se defendant. The prosecutor should clarify that they are only expressing their position regarding certain legal rights, duties, or obligations, rather than providing an impartial or authoritative interpretation of the law.
A prosecutor must also not take advantage of a pro se defendant’s ignorance of the law to achieve early procedural victories. The fairness provisions of Rule 3.4 apply equally to pro-se parties as they do to opposing counsel. Rule 3.8(c) provides that a prosecutor shall not “…seek to obtain from an unrepresented accused a waiver of important pretrial rights, such as the right to a preliminary hearing” as doing so would abridge the fundamental obligation that prosecutors have to ensure the fairness of the criminal justice system. Indeed, the oft-cited ABA comment to 3.8 reminds all prosecutors that they “[have] the responsibility of a minister of justice and not simply that of an advocate,” meaning that there are times that the prosecutor has to ensure the constitutional and procedural fairness of the proceeding, even though doing so may be less advantageous or expedient to the prosecutor’s case.
Additionally, a prosecuting attorney who directly supervises police prosecutors or other prosecuting officers or detectives must make reasonable efforts to ensure that they adhere to the Rules of Professional Conduct in their interactions with pro-se defendants pursuant to Rule 5.3.
Communications
Prosecutors must also exercise significant caution when communicating with pro se defendants. A defense attorney typically serves as a barrier to possible communication concerns when the defendant is represented. However without an attorney, a pro se defendant may make testimonial admissions or statements to the prosecutor in the course of conversations that may inadvertently turn the prosecutor into a necessary witness during the proceeding. If the prosecutor were to become such a witness, Rule 3.7 would require the prosecutor to recuse themselves from acting as an advocate in the case. Prosecutors should always try to have a witness with them when they are communicating with pro se defendants to avoid this potential.
Prosecutors should also pay close attention to the accuracy of all statements of fact and law that they make to pro se defendants. Rule 4.1(a) prohibits a lawyer from knowingly making any false statements of material fact or law to a third party in all contexts already, but a prosecutor should be aware of the possibly heightened effect of their statements to a pro se defendant as they are likely the government official that the defendant is interacting most closely with in the proceeding. The prosecutor should take extra caution to make sure that they are not even inadvertently or negligently making false statements or even statements that could be misinterpreted by a non-lawyer.
Candor
Finally, prosecutors may have an enhanced responsibility of candor to the tribunal when dealing with a pro se defendant as the defendant is almost certainly not aware of all of the laws or facts pertaining to the proceeding. Prosecutors should be aware of Rule 3.3(a)(2), which provides that an attorney shall not “fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel.” The prosecutor may be required to disclose adverse case law or legal authority that normally an opposing counsel would raise but the pro se defendant is understandably ignorant of.
This Ethics Corner Article was submitted for publication review to the NHBA Board of Governors at its December 18, 2025 Meeting. The Ethics Committee provides general guidance on the New Hampshire Rules of Professional Conduct and publishes brief commentaries in the Bar News and other NHBA media outlets. New Hampshire lawyers may contact the Committee for confidential and informal guidance on their own prospective conduct or to suggest topics for Ethics Corner commentaries by emailing the Ethics Committee Staff Liaison at: ethics@nhbar.org