Critical changes afoot in attorney conduct rules
By James P. Fox
President, the State Bar of California
As a lawyer in private practice in San Mateo in 1980, I was
preparing to try what would wind up being my first and only death penalty case.
The defendant was a man I had known for years, ever since he was an inmate in
As the defense lawyer, I never doubted that I had full
access to the evidence in the case. The jury deliberated whether to give the
death penalty for 10 days. After two jurors were replaced due to illness – one
of them having a nervous breakdown due to the stress – the jury gave my client
a reprieve of a life sentence.
A few years later, I went on to become the elected district
attorney in San Mateo County. During my service, at one point we had sought the
death penalty 18 times and juries returned a death verdict 14 times and were
unable to reach a verdict in the other four cases. We always turned over all
the evidence we had to the defense. To me, it’s a question of basic fairness.
The defense can only make an informed decision with the full facts.
But my earlier experience as a defense lawyer never left me.
It helped form my views about the awesome power prosecutors have and the
importance of using that power carefully.
It was with this in mind that I joined my colleagues on the
State Bar Board of Trustees last month in endorsing a new Rule of Professional
Conduct in California that applies only to prosecutors. Proposed Rule 5-110,
which now goes to the California Supreme Court for final approval, is similar
to American Bar Association Model Rule 3.8 and requires broad disclosure of evidence
the prosecutor knows or should reasonably know would be helpful to the defense.
I was not the only criminal prosecutor on the State Bar Board
of Trustees who supported this rule. Miriam Krinsky, a former federal
prosecutor whose term as a trustee ended with the Oct. 1 board meeting where
the rule was adopted, spoke about the need to heal the fractured bonds of trust
in all parts of the justice system. She pointed out that the ethics rules are
the moral compass for lawyers in our state and this rule is needed to make it
clear that our system rejects a “win at all costs” mentality.
Terry Wiley, another outgoing board member who serves as
prosecutor in Alameda County, spoke so eloquently about the long shadow of
corruption that sullied the Alameda County District Attorney’s Office before the
legendary Earl Warren arrived to clean up the office in the 1930s. Warren, who
went on to become the governor of California and the chief justice of the U.S.
Supreme Court, instilled a culture of high prosecutorial ethics that remains
Two other prosecutors on the board – Danette Meyers of Los
Angeles and Brandon Stallings of Bakersfield – agreed that prosecutors should be
held to a high standard. They preferred an alternate version of the rule, which
they thought provided clearer guidance for prosecutors.
While I understand and share some of their concerns, I take
comfort in knowing that the California Supreme Court has the final say in any
discipline case, which will protect against unfair application of the rule.
I’d like to take this opportunity to thank Justice Lee Edmon
of the 2nd District Court of Appeal, who chaired the the Rules Revision Commission
which brought us the proposed rule.
This month, the commission will bring to the board for
approval another 68 new and revised attorney ethics rules. As outgoing
President David Pasternak has noted, these rules will have a profound effect on
what attorneys do every day in service of their clients and the public. They
involve fee arrangements, conflicts of interest and more.One proposed rule, for example, strengthens a rule against discrimination.
As I begin my year-long term as president, I feel fortunate
that I and the incoming board will have the benefit of all the hard work the
commission has put in for nearly two years. The commission has received feedback from the public and attorneys about the rule changes. We welcome further input as we evaluate these equally important proposals, which are on track for submission to the California Supreme Court by March 2017.