The reformed Rules Revision Commission had its initial meeting on March 27, 2015 and made news immediately with the disclosure of a letter written to the Commission by the California Supreme Court.  The Court asked the Commission to consider piecemeal additions to the current California Rules of Professional Conduct, and specifically the adoption of a specific rule on prosecutor misconduct (thank you to John Steele and Legal Ethics Forum.)  Such a rule exists now in ABA Model Rule 3.8, although it is unknown whether the Supreme Court specifically referenced that rule in its letter.  The ABA Model Rules based set of rules proposed by the former Commission included a version of Rule 3.8.  The Discussion Draft of that rule shows the California District Attorney’s Association opposing adoption of the California version of the rule and expressing the view that current California Rule of Professional Conduct 5-110 was adequate (see page 28) a view generally echoed by all the other District Attorney’s who commented.

The Supreme Court evidently disagrees (as did the first Rules Revision Commission.) Whether or not it sees, as Judge Kozinski does, an “epidemic of prosecutorial misconduct”, it perceives an ethics problem and it perceives State Bar discipline as part of the solution.  Didn’t the high court tell us just last September that that it perceived the California Rules of Professional Conduct primarily as a vehicle for discipline?

Events seem be crystallizing quickly, as they seem to do in the 21st century, toward an institutional response to the suddenly highly visible problem of prosecution ethics.   On April 9, 2015, the District Columbia Court of Appeals issued an opinion in a disciplinary matter finding that the ethical duties set forth in Rule 3.8 are broader than the disclosure duties imposed by Brady v. Maryland, 373 U.S. 83 (1963), and specifically rejected the respondent prosecutor’s argument that the lack of disclosure must be material, i.e. that there must a reasonable probability that the information or evidence withheld made a difference in the outcome of the trial.  The most immediate backdrop is the continuing series of disturbing revelations regarding prosecutorial failures to disclose exculpatory evidences, including the revelation that resulted in disbarment and a jail sentence for a Texas judge, a former prosecutor, the every growing stream of exonerations of criminal defendants, and the highly publicized instances of alleged police misconduct that have shaken the image of the prosecutors’  close working partner in the criminal justice system.  Lurking somewhat deeper in the shadows is the decline in crime rates and the diminished (though still potent) strength of the “tough on crime” message in the political realm.  The cost and consequences of the “tough on crime” era are becoming clear; one of them appears to the creation of a “win at any cost” culture in our prosecution agencies that is at odds with the prosecutor’s duty to do justice.

The relationship between the lawyer discipline system and the criminal prosecutor is uneasy, to say the least.  Historically, the discipline system has never made prosecution of the prosecutors a priority.

The relationship between OCTC and the criminal prosecutors has always been close. Many OCTC personnel have law enforcement backgrounds, investigators and prosecutors, such as the Chief Trial Counsel, who was a United States Attorney; her predecessors were all former criminal prosecutors, with the exception of Scott Drexel and James Towery. The discipline prosecutors are required to forward information regarding criminal behavior to the criminal prosecutors and they have worked closely together on issues including the unauthorized practice of law.

While there may be reasons for making discipline of prosecutors a low priority in the past, the political context surrounding it has unraveled, rather suddenly and dramatically.

At the State Bar’s 15th Annual Ethics Symposium in April 2011, a heated exchange took place between former San Mateo District Attorney Jim Fox and representatives of The Innocence Project.  Both were invited to present after former Chief Trial Counsel James Towery (now Judge Towery) directed a senior State Bar discipline prosecutor to review claims by the Project regarding “claims that bar isn’t tough enough on prosecutors who violate the rules” in the words of the November 2010 California Bar Journal.  Less than two months later, Mr. Towery was forced out as Chief Trial Counsel, replaced with current Chief Trial Counsel Jayne Kim and Mr. Fox, who came out of retirement to become a consultant in the Office of Chief Trial Counsel (OCTC).   The evaluation of The Innocence Project claims never went forward.  Whether Mr. Towery’s willingness to at least examine those claims played a role in departure is unknown.  Mr. Fox was appointed to the State Bar Board of Trustees by the California Supreme Court after, by some accounts, management responsibilities OCTC’s San Francisco office somewhat more broad than those of a typical consultant.

Nevertheless, discipline cases against criminal prosecutors, formerly rare, have become less rare, especially when there has been finding by the criminal courts of misconduct.   The Ben Field case, initiated under the aegis of Scott Drexel in 2007, was a landmark event in this progression, a criminal prosecutor found to have violated his duty to have engaged in “a calculated scheme to hide evidence favorable to the defense” resulting in a four year actual suspension, a heavy hit for a decade long pattern of misconduct.  The California District Attorney’s Association (CDAA) filed an amicus brief in Mr. Field’s appeal to the Review Dept. arguing that several of the grounds for discipline involved questions of law that have not been settled. The Review Dept. did not address these arguments but found Field’s behavior sufficiently certain to find him culpable of a number of acts of moral turpitude.

If we are really in an ethics crisis, an epidemic of prosecutor misconduct, then we will should see more discipline prosecutions of criminal prosecutors, aided by whatever rule is ultimately approved by the California Supreme Court (which seems inevitable).  If we don’t, then we will be left to wonder:  Was the epidemic of prosecutor misconduct real or just the overworked imagination of overworked judges? Is the discipline system of the State Bar complicit in the creating a culture of tolerance for prosecutor misconduct?

Or did the rule itself deter prosecutor misconduct by focusing prosecutors on their ethical duties, on the possibility of professional discipline and thereby help create a culture in the prosecutor’s office emphasizing those ethical duties?  That last possibility would be ironic result given the Supreme Court’s discomfort with the “aspirational” use of the Rules of Professional Conduct.