State Bar Forging New Rule on Prosecutor Misconduct. Will It Ever Be Used?

In October 2010, newly installed Chief Trial Counsel James Towery (now Judge Towery of the Santa Clara County Superior County)  announced that his office,  the Office of Chief Trial Counsel, the State Bar’s discipline prosecutor,  would be taking a close look at a report from the Northern California Innocence Project  criticizing the  State Bar for taking no disciplinary action against  criminal prosecutors in a number of cases where the criminal conviction had been reversed.

We’re happy to see the report because it shines a light on something that deserves attention,” said Towery.  At the same time, he added, the bar is striving for a “balanced response.”

“On the one hand, there has been an historical underreporting and, as a result of that, underprosecuting of prosecutorial misconduct,” he said. “On the other hand, we know there are some flaws in the report.” Those flaws include the fact that early State Bar research indicates that a number of cases cited in the report involve minor violations of the rules and  do not rise to a level of discipline. Also, many instances of prosecutorial misconduct are never reported to the bar. “We’re looking at those which made a difference in trial and will weigh whether further investigation is warranted,” said Towery.

Mr. Towery charged an experienced discipline prosecutor in the State Bar’s San Francisco office with examining the Innocence Project report and determining whether any further action should be taken.

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At the April 2011 State Bar Ethics Symposium in San Francisco,  Maurice Possely, the journalist who was co-authored the report, squared off in a heated debate with former San Mateo District Attorney James Fox regarding the claims in the report.  Mr. Fox’s position was what you expect:  the report was exaggerated, unfair,  and irresponsible.

Shortly thereafter,  Mr.  Towery was forced out as Chief Trial Counsel.   Jayne Kim was named interim Chief Trial Counsel and  Mr. Fox was brought into the office, designated a management consultant, but according to State Bar insiders, essentially serving  as the manager of the San Francisco prosecution office.  Nothing further was heard from OCTC on the claims of  the Innocence Project. The ubiquitous Mr. Fox was later named to the State Bar Board of Trustees by the California Supreme Court in July 2014.

Among the recommendations of the Innocence Project was the  adoption of ABA Model Rule 3.8, setting forth the special duties of a criminal prosecutor.   In fact, a version of the rule had been drafted by the first Rules Revision Commission (RRC1) after much discussion and input from criminal prosecutors  and defense attorneys, and approved by the Board of Trustees in 2010.  The Supreme Court notified the State Bar that it was rejecting  all of RRC1’s work product in September 2014, including the rules like California’s first version of 3.8 that had never been sent to them.  It tells the State Bar to form a new rules revision commission, one that will formulate new rules of professional conduct, ones that will focus on changing the current rules to eliminate unnecessary differences with the rules in other states, with the goal that the proposed rules “remain as set of minimum disciplinary standards” that should avoid incorporating “purely aspirational or ethical considerations” present in the Model Rules and Model Rules Commentary.  Deadline for completion of this  new set of rules:  March 2017.

But the zeitgeist is shifting.  Ninth Circuit judge Kozinski decries an “epidemic” of prosecutor misconduct.  New Brown appointees Cueller and Kruger join the Supreme Court.  At some point,  lawyers associated with the Innocence Project,  Barry Scheck and Loyola Law School professor Laurie Levinson, write to the California Supreme Court suggesting that a professional rule on prosecutor misconduct is urgently needed.  In early 2015, the California Supreme Court writes to the State Bar and suggests that such a rule could be adopted on a “fast track” and considered more quickly and apart from the complete set of rules.


The State Bar’s Second Commission for the Revision of the Rules of Professional Conduct (RRC2)  has again tackled, at the strong suggestion of the California Supreme Court, a California version of Model Rule 3.8.   RRC2’s version, consistent with Supreme Court’s direction closely tracks 3.8, which has been adopted in some form in the other 49 states,  with the major difference being a more limited statement of the prosecutor’s responsibilities regarding extrajudicial statements, e.g. pre-trial  publicity.

Some new disciplinary rule on prosecutor misconduct will almost certainly be adopted and soon.  What happens then?

The reluctance of disciplinary authorities to prosecute criminal prosecutors has long been known.  The 2010 Innocence Project report found that only 10 criminal prosecutors had been subject to bar discipline between 1997 and 2009, and only six of the cases involved actual prosecutorial misconduct, all for withholding evidence, as opposed to discipline for other reasons (e.g. criminal conviction.)  Moreover, as noted in the report, all of these disciplines occurred after 2004, when the California Commission on the Administration of Justice was established.

This reluctance has been analyzed by one noted scholar of legal ethics.  Prof. Zacharias finds a number of reasons why State Bar’s might not be keen on prosecuting prosecutors, including limited resources and the fact that disciplinary authorities are focused on remedying attorney misconduct directed toward clients.

Historically, regulatory authorities have imposed discipline primarily on sole or small-firm practitioners who are uncontrolled by such internal constraints and are likelier to make “ethical decisions” by the seat of their pants. Similarly, disciplinary authorities tend to focus on intentional misconduct by lawyers whose actions are self-serving or governed by greed.Such misconduct often reflects a lawyer who is likely to commit additional violations, because the lawyer will continue to be influenced by personal incentives unless taught a lesson.

To put it bluntly,  criminal defendants have never been regarded as part of the “public” that we seek to protect with the charge the discipline system.  As an example, in my work as staff to the State Bar’s Complainants Grievance Panel  (1989 -1992)  we found that complaints from incarcerated persons were routinely closed with little or no investigation.  In another matter I handled as a discipline prosecutor, I was repeatedly told that we did not have enough evidence to move forward despite judicial findings that exculpatory evidence had been withheld.  This case ultimately resulted in discipline many years later.

Many of the staff in the Office of Chief Trial Counsel have law enforcement backgrounds, as police officers, investigators  or prosecutors;  our current Chief Trial Counsel spent some time in US Attorney’s office.  The office also works closely with law enforcement and the criminal prosecutors on many issues.  Not only Mr. Fox but other members of the Board of Trustees have criminal posecutor on their resumes.

nonetheless, the State Bar has become more willing to prosecute prosecutor misconduct in recent years,  the most notorious case being that of Ben Field.  Without the benefit of a specific prosecutor misconduct rule,  Mr. Field was  charged with acts of committing acts of moral turpitude (Bus. & Prof. Code section 6106) by various misrepresentations, withholding evidence, and showing lack of respect for the court,  failing to obey court orders requiring discovery,  and violating his duty under Bus. & Prof.  Code section 6068(a) to uphold the law by violating discovery statutes in the Penal Code.  In the years since Ben Field, there has been only one other prosecution of a prosecutor for withholding evidence, a case that resulted in a public reproval.

It is certainly a good idea to adopt a prosecutor misconduct rule.  But my experience and the example of Ben Field suggest that the problem is not so much a lack of the proper tools (that all-purpose Swiss Army Knife known as section 6106 and its only slightly less broad cousin section 6068(a), for instance)  but a lack of proper motivation.  That cannot be cured by a rule change.

Except to the extent that the fact of the rule change sends a strong signal from the top to potential offenders that this behavior we want you to change, that we want you to aspire to something greater.   That signal would seem to have been sent to the criminal prosecutors.

Will the Office of Chief Trial Counsel perceive the same signal?   There are at least two examples of high-profile rule changes that have led to almost no discipline prosecutions — current rule  3-120 Sexual Relations with Clients  (let’s call it the Mitchelson rule)  and current rule 5-120 Trial Publicity (let’s call it the  O.J. rule.)  I know of exactly one case involving the former and no cases involving the later.   Without a doubt, the rule change gives them a better tool.  History suggests it may not be used in a meaningful way.

Ironically, given the Supreme Court’s direction in September 2014, the only real value of the rule could be aspirational.

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