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MCLE Self-Assessment Test

Ethics panel pushes a disclosure rule for prosecutors

By Laura Ernde
Staff Writer

A State Bar panel last month recommended that California amend its ethics rules to specifically address prosecutorial misconduct.

The bar’s Rules Revision Commission voted Oct. 23 to forward the proposed amendment to the Board of Trustees as soon as this month – ahead of the larger rule revision project the commission is undertaking. The California Supreme Court will have the final say.

The key provision of the proposed amendment is derived from the ABA Model Rules. It would require: “Timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense, and, in connection with sentencing, disclose to the defense all unprivileged mitigating information known to the prosecutor, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal.”

“This sets a very simple standard that every prosecutor can follow,” Santa Clara University School of Law Professor Gerald Uelman told the commission.

The California District Attorneys Association backed alternate language requiring prosecutors to comply with “all statutory and constitutional obligations, as interpreted by relevant case law.”

“We want to align our ethical obligations with our statutory obligations,” said Yuba County District Attorney Patrick McGrath, the president of the DAs association. He argued the case law distinction is important to protect prosecutors who believe they are doing the right thing from being subjected to undeserved discipline.

Defense lawyers argued that the broader rule ultimately adopted by the commission follows broader constitutional standards widely understood by prosecutors across the country.

Ninth U.S. Circuit Court of Appeals Judge Alex Kozinski has complained of an “epidemic” of prosecutorial misconduct.

Earlier this year, an Orange County Superior Court judge disqualified the Orange County District Attorney’s Office from a high-profile murder case due to allegations prosecutors withheld evidence.The incident led to (AB 1328) recently signed by Gov. Jerry Brown, requiring judges to report offending prosecutors to the State Bar.

Although the current Rules of Professional Conduct are not versions of the ABA Model Rules, a longstanding California rule, Rule 5-220, provides that all lawyers have an obligation not to suppress evidence that the lawyer or the lawyer's client has a legal obligation to reveal or produce, said Randall Difuntorum, the bar’s director of professional competence. In addition, attorneys are required to report to the State Bar when a judgment is reversed due to misconduct.

High-profile cases where prosecutorial misconduct has resulted in State Bar discipline include Del Norte County District Attorney Jon Alexander and Santa Clara County Deputy District Attorney Benjamin Field.

The rules commission, chaired by 2nd District Court of Appeal Justice Lee Edmon, was charged by the Supreme Court with preparing a new set of rules for approval by the Board of Trustees and submission to the Supreme Court by March 31, 2017.