California’s Second Commission for the Revision of the Rules of Professional Conduct continues its work to update California’s ethics rules (and switch to the ABA Model Rules format). The Commission’s website includes a page where it regularly posts its draft rules for comment. For example, in April 2016 the Commission posted its proposed drafts of Rules 1.2, 1.7, and 7.1-7.5, among other rules. In May 2016 the Commission posted drafts of Rules 3.3-3.6 and a proposed rule dealing with prosecutorial responsibilities. The June 2016 column by State Bar of California President David Pasternak urged California lawyers to submit their comments to the Commission. Given California’s size and influence, this work deserves careful consideration by all lawyers.
The Ohio Supreme Court in Disciplinary Counsel v. Brockler recently imposed a stayed suspension on an ex-prosecutor who used a fictitious Facebook account to contact alibi witnesses in a criminal case that he was prosecuting. The discipline came after the prosecutor had been fired for “his unethical conduct in creating false evidence, lying to witnesses and another prosecutor, and damaging the prosecution’s chances in a murder case . . . .”
The Court found that the prosecutor doubted the alibi witnesses’ stories and created a fictitious Facebook account to contact the witnesses. In setting up the account, the male prosecutor used a pseudonym, posed as a woman, and added pictures, group affiliations, and “friends” that he based on the defendant’s jailhouse telephone calls and Facebook page. He contacted the witnesses claiming that he was romantically involved with the defendant, and he discussed the alibi as if it were false. He had separate Facebook chats with two witnesses, and he tried to get them to admit that they were lying for the defendant, or would lie for him, and he tried to convince them to talk with the prosecutor. After chatting with them for several hours, he thought that they were becoming suspicious so he printed out copies of the chats, put them in the case file, and deleted the Facebook account.
Subsequent to being fired and before his disciplinary hearing before the Board of Professional Conduct, the prosecutor gave press interviews in which he claimed that such ruses where common among prosecutors to get at the truth and that he did this to keep a murderer behind bars. A year after he was fired, the defendant was convicted of aggravated murder and other related charges.
Prior to the hearing, the prosecutor entered into a stipulation that he had violated Rule 8.4(c), which prohibits a lawyer from engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation. He urged the disciplinary board to carve out an exception for “prosecutorial investigation deception.”The board refused to do so, noting that it had previously disciplined three non-prosecutors for engaging in dishonest conduct involving contact with witnesses in their clients’ cases. The board also found the former prosecutor guilty of Rule 8.4(d), engaging in conduct prejudicial to the administration of justice.
The Ohio Supreme Court upheld the board’s findings, but split 4-3 on the sanction of a stayed one year suspension from the practice of law. Two of the dissenting justices favored the one year suspension without a stay, and one justice favored an indefinite suspension. In the prior cases involving non-prosecutors, two lawyers received stayed six-month suspensions for making misrepresentations to a client’s former landlord to see if the landlord would slander the client, and one lawyer received a one-year suspension, six months stayed, for intimidating a deposition witness by creating the false impression that the lawyer had compromising person information that could be used against the witness.
This case, and other cases, should serve as warnings about the limits of advocacy. While seeking truth is noble, using deceit and misrepresentations in an effort to help one’s case is going beyond what the ethics rules allow.
From NPR News:
The U.S. Supreme Court hears arguments [today] testing whether a Pennsylvania Supreme Court justice violated the U.S. Constitution when he ruled in a death penalty case that he had been involved with as a prosecutor.
At issue is whether then-Chief Justice Ronald Castille, by refusing to recuse himself, denied the defendant, Terrance Williams, a fair hearing.