The American Bar Association published a formal ethics opinion last week advising prosecutors of their duties in plea bargaining with defendants charged with misdemeanor offenses. The opinion is one part scathing indictment of the process for prosecuting petty offenses across the country and one part ethical advice for prosecutors.
Tag Archives: ethics
A case involving charges of impaired driving is calendared on today’s district court docket. The defendant was charged more than two years ago; the case has been continued several times pursuant to motions made by the defendant and the State. When this case last appeared on the docket, the State moved for a continuance, and the defendant objected. The district court granted the State’s motion, but ordered that it be the last continuance for the State. Earlier this morning, the State again moved to continue the case. The district court denied the State’s motion, and directed the State to call the case or dismiss the charges. The State refused to take either action. What can the judge do?
The domestic violence case against Carolina Panther Greg Hardy was dismissed this week. According to the Charlotte Observer, a principal reason was that the alleged victim, Hardy’s ex-girlfriend, refused to cooperate and avoided service of a subpoena. Prosecutors also told the judge that the alleged victim had reached a civil settlement with Hardy. To be clear, no one has said that the settlement agreement required the alleged victim not to cooperate. But could the agreement contain such a provision? Continue reading →
Many criminal defense lawyers are reluctant to give incarcerated clients copies of discovery materials. Lawyers may worry that the materials will be stolen by other inmates, who will then use the information in the materials to bolster false claims that the defendant confessed to them. And lawyers may believe that certain clients simply should not have access to certain materials, such as the addresses and phone numbers of witnesses or alleged victims. But what if a client insists on having a copy of discovery materials? A new State Bar ethics opinion addresses this issue. Continue reading →
Everyone knows that under Brady v. Maryland, 373 U.S. 83 (1963), a prosecutor must disclose material exculpatory or mitigating evidence to the defense. But does Brady apply only prior to trial, or does the obligation continue after a defendant has been convicted? That’s one of the questions raised by this Washington Post article, which reports that federal Department of Justice officials became concerned about certain practices in the FBI’s forensic laboratory and conducted an investigation, but that while many prosecutors “made swift and full disclosures” of problems documented by the investigators, “many others did so incompletely, years late or not at all.”
The United States Supreme Court recently held Brady inapplicable in the post-conviction setting. District Attorney’s Office for Third Judicial Dist. v. Osborne, 557 U.S. 52 (U.S. 2009) (holding that the Ninth Circuit “went too far” in applying Brady to post-conviction proceedings, because after a defendant is convicted at a fair trial, he has fewer procedural rights than a defendant who has not been convicted; the Court also stated that Brady is “the wrong framework” for post-conviction proceedings, though it acknowledged that defendants retain some due process rights even after conviction). See also Imbler v. Pachtman, 424 U.S. 409, 427 n. 25 (1976) (stating that “at trial” a prosecutor’s duty to disclose evidence comes from the Due Process Clause, while “after a conviction the prosecutor also is bound by the ethics of his office to inform the appropriate authority of after-acquired or other information that casts doubt upon the correctness of the conviction”).
Prior to Osborne, some lower courts had held that Brady did apply in post-conviction. See, e.g., Duckett v. State, 918 So.2d 224 (Fla. 2005) (Brady creates a “continuing duty throughout all proceedings,” including postconviction proceedings); Monroe v. Butler, 690 F.Supp. 521 (E.D.La. 1988) (“[N]othing in Brady or its progeny limits its doctrine of fact characterization to the pre-conviction context. Brady doctrinally stands for the notion that it is fundamentally unfair for the prosecution to withhold material, exculpatory evidence from the defendant and that the proceeding in which the unfairness occurred should be overturned so that the merit of the Brady facts can be considered. Clearly, such nondisclosure is as unfair where it prevents a defendant from taking full advantage of post-conviction relief as it is when it results in the forfeiture of the defendant’s right to a fair trial. The prosecutor’s duty to disclose material, exculpatory evidence continues through the period allowed by the State for post-conviction relief.”). See generally Fred C. Zacharias, The Role of Prosecutors in Serving Justice after Convictions, 58 Vand. L. Rev. 171 (2005) (characterizing the issue as unsettled).
Even though Osborne has settled the Brady issue, a prosecutor may be bound by the requirements of legal ethics to disclose exculpatory evidence obtained after conviction. Rule 3.8(g) of the ABA’s Model Rules of Professional Conduct provides that when a prosecutor “knows of new, credible and material evidence creating a reasonable likelihood that a convicted defendant did not commit an offense of which the defendant was convicted,” he or she must disclose the information to a court, and normally to the defendant as well. North Carolina’s Rule 3.8 doesn’t contain a specific provision about post-conviction disclosure of exculpatory evidence, but its general requirement that a prosecutor disclose “all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense” is not limited to the pretrial stages of a case and might therefore apply. Other ethical rules may also come into play.
Finally, even in cases where there is no legal or ethical requirement of disclosure, a prosecutor may choose to provide potentially exculpatory evidence to a convicted defendant in the interest of justice. In other words, even when disclosure is not required, it is not forbidden.
Criminal defendants, especially those sentenced to long prison terms, sometimes try to attack their convictions and sentences by claiming that their trial lawyers provided ineffective assistance of counsel. The state sometimes seeks trial lawyers’ help in answering these claims, and trial attorneys may want to help in order to avoid findings of ineffectiveness. At the same time, trial counsel may have ongoing duties of loyalty and confidentiality that make it inappropriate simply to open their files to the state. The State Bar just issued a proposed ethics opinion — Proposed 2011 FEO 16 — concerning how to balance these competing considerations. It’s available in full here. The Bar’s summary of the opinion is as follows:
Proposed opinion rules that a criminal defense lawyer accused of ineffective assistance of counsel by a former client may share confidential client information with prosecutors to help establish a defense to the claim so long as the lawyer reasonably believes a response is necessary and the response is narrowly tailored to respond to the allegations.
In other words, the Bar may soon rule that a defense lawyer may assist the state in responding to allegations of ineffective assistance of counsel, perhaps by discussing the case with a prosecutor or by preparing an affidavit summarizing the attorney’s view of the relevant facts. The Bar views such assistance as permitted under Rule 1.6(b)(6), which allows a lawyer to reveal otherwise confidential information as necessary to respond to allegations concerning the lawyer’s representation of a client. The proposed opinion does emphasize that “lawyers who choose to respond to claims of ineffective assistance of counsel . . . [must] respond in a manner that is narrowly tailored to address the specific facts underlying the specific claim. Simply put, the pursuit of an ineffective assistance of counsel claim by a former client does not give the lawyer carte blanche to disclose all information contained in a former client’s file.”
The proposed opinion expressly declines to follow an opinion on the same subject recently adopted by the American Bar Association. ABA Formal Opinion 10-456, available here, asserts that “it is highly unusual for a trial lawyer accused of providing ineffective representation to assist the prosecution in advance of testifying” at a hearing on collateral review. That’s an empirical question, and my experience is contrary to the ABA’s conclusion, but it’s probably neither here nor there as to the ethics issue. On the ethics issue, the ABA points out that while a claim of ineffective assistance waives the attorney-client privilege and work product protections as to information needed to respond to the claim, a defendant and his prior attorney may disagree about the scope of the implied waiver. Therefore, the ABA reasons, the attorney ought not disclose anything outside a judicial proceeding, during which the defendant will have an opportunity to object to disclosure. Nor is extra-judicial disclosure normally “necessary” to respond to the defendant’s claim, because many claims of ineffective assistance are dismissed on procedural grounds, while the remainder, in the ABA’s view, may be answered adequately in court. Thus, the ABA concludes that “it is highly unlikely that a disclosure in response to a prosecution request, prior to a court-supervised response by way of testimony or otherwise, will be justifiable.”
I welcome any thoughts about this issue generally and about the Bar’s proposed opinion specifically. If I receive substantive comments, either on the blog or by email, I’ll forward them to the Bar.
Last month, the State Bar issued a proposed ethics opinion regarding contact between prosecutors and defense lawyers, on the one hand, and children who are prosecuting witnesses in criminal cases involving allegations of physical or sexual abuse, on the other. The proposed opinion, which is available here, concludes that a lawyer “may not interview a child who is the prosecuting witness in a criminal case alleging physical or sexual abuse if the child is younger than . . . 14 . . . unless the lawyer has the consent or authorization of a non-accused parent or guardian or a court order.” The opinion focuses on unrepresented children; in keeping with general principles, represented children are treated differently. I have some concerns about the proposed opinion, which I’ll mention below, but I wanted to start by setting out the reasoning in the opinion.
The opinion addresses a recurrent and important topic. As the proposed opinion puts it, child abuse cases pose “a difficult dilemma for a lawyer who has a duty to prepare competently by investigating each case and interviewing key witnesses, but who does not wish to cause further harm to a child who may have been traumatized by physical or sexual abuse.”
In resolving this dilemma, “the Ethics Committee received input from mental health professionals and child advocates,” who stated that repeated interviews may be traumatic for a child; that interviews are best conducted by professionals; and that it is generally helpful for a family member to be present during interviews. The Committee concluded that children often “are inexperienced in legal matters and will not understand the role of a lawyer who seeks an interview,” may defer to a lawyer’s apparent authority, and may be vulnerable to suggestion. Thus, the opinion concludes that certain children may be interviewed only with the consent of a parent or guardian, or with a court order.
But which children? The opinion states that “the emotional and intellectual sophistication of a child cannot be determined by a lawyer or established by an opinion of the Ethics Committee. However, the General Assembly has determined that a child at a certain age is legally mature for the analogous purpose of responding to an in-custody interrogation.” Citing G.S. 7B-2101, which effectively provides that police may engage in custodial interrogation of a suspect under age 14 only when the child’s parent, guardian, custodian, or attorney is present, the proposed opinion adopts 14 as the cutoff below which an attorney may not interview a child without consent or a court order. The proposed opinion allows lawyers to interview children older than 14 without consent or a court order, provided that the lawyer makes certain disclosures about the lawyer’s role and the child’s rights during the interview, and the lawyer “reasonably determines that the child is sufficiently mature to understand the disclosures.”
I’ve already mentioned that this is a difficult and important issue. In addition to the potential harm to children from ill-advised interviews, “[s]ocial science evidence of children’s suggestibility indicates that persistent pretrial interrogation of child witnesses can impair the search for truth in litigation.” Jean Montoya, Something Not So Funny Happened on the Way to Conviction: the Pretrial Interrogation of Child Witnesses, 35 Ariz. L. Rev. 92 (1993). However, I have some concerns about both the timing and the content of the proposed opinion.
As to the timing, the United States Supreme Court has recently granted certiorari in Camreta v. Greene, a case about interviewing child witnesses. (More information about the case is available here.) Although the case concerns interviews by law enforcement, rather than lawyers, it may well result in guidance about interviewing children in criminal cases generally. Further, given that the proposed opinion relies heavily on statutory rules regarding interviews by law enforcement as support for its conclusions about when lawyers may conduct interviews, it may be worth waiting for the Supreme Court’s opinion before finalizing any ethics opinion.
As to the content of the proposed opinion, I am troubled by its reliance on the so-called juvenile Miranda rules as a basis for the regulation of lawyers’ professional conduct. The proposed opinion’s basis for importing the age 14 cutoff from those statutes is that “the emotional and intellectual sophistication of a child cannot be determined by a lawyer or established by an opinion of the Ethics Committee.” The proposed opinion does not explain why the General Assembly is better suited to addressing this issue. But more importantly, the General Assembly hasn’t addressed the issue: the juvenile Miranda statues govern police conduct regarding young suspects in the inherently coercive setting of a custodial interrogation. They simply have nothing to do with whether a lawyer should be allowed to interview a young witness in non-custodial circumstances. It may be that age 14 is a reasonable cutoff, but if so, it isn’t because that is the cutoff in G.S. 7B-2101.
In fact, I am not sure that any bright-line rule is possible or desirable. The proposed opinion implicitly recognizes this when it permits interviews of children over 14 only once the lawyer “determines that the child is sufficiently mature to understand the disclosures” required by the opinion. If a lawyer is able to determine the maturity and comprehension of a 15 year old, why is the same lawyer unable to determine the maturity and comprehension of a 13 year old? A commentator discussing the permissibility of child interviews in connection with custody cases puts the point simply: “If a minor is mature enough to understand the nature of a lawyer and comprehend the proceedings,” an interview is permissible; otherwise, it is not. Lewis Becker, Ethical Responsibilities of a Lawyer for a Parent in Custody and Relocation Cases, 15 J. Am. Acad. Matrim. Law. 33 (1998).
Finally, the proposed opinion is vague in several important respects. For example, it allows lawyers to interview children under 14 pursuant to a court order, but never explains what type of order is contemplated. Similarly, the proposed opinion states that even with children over 14, a lawyer “should err on the side of giving notice to the parent or guardian—and preferably obtaining the consent of the parent or guardian—unless circumstances are such that the lawyer has a good faith belief that the child’s candor may be affected by the knowledge of the parent.” It is not clear whether this creates an ethical requirement, or is simply well-meaning dicta. Likewise, the proposed opinion states that a lawyer “may not engage in emotional manipulation or other forms of undue influence, coercion, or intimidation that may inhibit or alter the witness’s testimony.” Presumably this is true with respect to all witnesses, not just children. If the opinion is establishing a different standard for influencing child witnesses, it should say so more clearly. If not, this passage creates a needless confusion about the permissibility of common interviewing techniques such as questioning a witness’s veracity or confronting the witness with inconsistent facts.
It is easy to be a Monday morning quarterback with respect to ethics opinions. They tend to address difficult situations, and this one is especially complex. Readers, what do you think? Does the proposed opinion strike the right balance, or is it not quite ready for prime time?
For some time, I’ve been meaning to do a post about attorney-client confidentiality in extreme circumstances. For example, in this Chicago case, defendant X, who was charged with one murder, admitted to his lawyers that he had also committed another murder, one with which defendant Y had been charged. There was other evidence in the second case that lined up with the confession, so the lawyers representing defendant X were certain that defendant Y was completely innocent. But they watched as defendant Y was tried capitally, convicted, sentenced to life in prison, and served 26 years. Meanwhile, defendant X was convicted of the first murder and also sentenced to life in prison. Only after defendant X died did his lawyers come forward with the information that defendant Y was innocent and that defendant X was responsible for the murder. Defendant Y has since been formally exonerated, as described here.
The lawyers who represented defendant X said they consulted with “legal scholars, ethics commissions, [and] the bar association” and were consistently told that the ethics rules prohibited them from disclosing what their client had said. And, of course, Rule 1.6 does provide that “[a] lawyer shall not reveal information acquired during the professional relationship with a client” unless the client consents or one of the Rule’s exceptions apply. The only exception that could have any application here is set forth in Rule 1.6(b)(3), “to prevent reasonably certain death or bodily harm.”
Some of you may recall that a similar situation arose in North Carolina several years ago, when a North Carolina lawyer disclosed a client’s confidence after the client’s death in an effort to exonerate the client’s co-defendant. The lawyer’s theory, apparently, was that when an innocent man is convicted of a crime, his incarceration amounts to “bodily harm” within the meaning of Rule 1.6(b)(3). Although at least one legal scholar criticized that reasoning, the State Bar reportedly dismissed a complaint against the lawyer, suggesting that the Bar viewed the lawyer’s actions as reasonable.
According to this New York Times story, the Virginia State Bar likewise declined to sanction a lawyer involved in a similar case. And apparently at least one state – Massachussetts – expressly provides for a confidentiality exception when necessary “to prevent the wrongful execution or incarceration of another.”
The dilemma is pretty poignantly summed up by these opposing quotes from the Chicago case:
- From the innocent defendant: “Is (a) job more important than an individual’s life?”
- From one of the guilty defendant’s lawyers: “Should I do the right thing by Alton Logan and put my client’s neck in the noose or not? It’s clear where my responsibility lies and my responsibility lies with my client.”
I don’t know the right answer, but I’m interested in trying to harness the wisdom of crowds, so I’m going to try to put up a poll immediately below. I’ve never done a poll before, so bear with me if there are any technical difficulties.