Comments on: Ethical violations: A reluctance to report

By: Gideon

Gideon — Thu, 01 May 2008 22:44:09 +0000

No, I understand that. I just have a problem with not doing anything because it might have an adverse effect on the outcomes of future cases.

That’s adding an ethical violation onto another.

By: Ruth

Ruth — Thu, 01 May 2008 22:38:50 +0000

No, I don’t “stand by and let them continue…” I’ve filed motions to dismiss for prosecutorial misconduct and vindictiveness, gotten cases dismissed for Brady violations, etc. My point was simply that filing bar complaints does not change the outcomes in individual cases and may have an adverse effect on the outcomes of future clients’ cases.

By: Ryan

Ryan — Fri, 18 Apr 2008 15:53:01 +0000

Gideon, a great question and one in which we all wrestle with in our day to day practices. I rarely do criminal work but issues of reporting conduct of other attorneys also frequently arises on the civil side of practice.

When confronted with a situation where I believe another lawyer has violated some rule of professional conduct I look to the Commentary on Rule 8.3 which I understand to be as binding as the rule itself, which reads:

“If a lawyer were obliged to report every violation of the Rules, the failure to report any violation would itself be a professional offense…This Rule limits the reporting obligation to those offenses that a self regulating profession must vigorously endeavor to prevent.”

In the end, I voted that I would report conduct “only if egregious”.

By: Gideon

Gideon — Thu, 17 Apr 2008 13:27:09 +0000

Well, but how much “nicer” are they now anyway? And just because we fear that all of a sudden they’ll start being “mean” to our clients, doesn’t mean we should stand by and let them continue to flout ethical rules and hide exculpatory information.

By: Gideon

Gideon — Thu, 17 Apr 2008 13:25:15 +0000

I think if you don’t have “balls”, you’re in the wrong field.

Being a criminal defense lawyer is about standing up to the State on behalf of an individual. You cannot throw the current client under the bus for a hypothetical future client who may, or may not, bear the brunt of some hypothetical vengeance.

It’s not like prosecutors are “lenient” in serious cases anyway.

By: Chris

Chris — Wed, 16 Apr 2008 19:03:26 +0000

The last thing I want is to provide another incentive to deny my client’s claims of prosecutorial misconduct. Although one would never see it in an opinion, I don’t want the following running through the minds of judges: This prosecutor’s got a bright career ahead of him/her, they made a mistake and shouldn’t be reprimanded for it, learn from it sure, but reprimand? I’ll just talk with them in chambers about it. Still… if I find prosecutorial misconduct here, they’ll be taken to task for it…. Relief DENIED.

By: Greg Jones

Greg Jones — Tue, 15 Apr 2008 16:04:36 +0000

I once took over a case of alleged sexual abuse of a three-year-old girl after the prelimnary exam. Three months later I got the medical report, indicating no finding of abuse. it was withheld from the first lawyer, who would have called the doctor at the exam, and had the case dismissed. Instead, the defendant sat in jail for about eight months before being acquitted. My complaint to the grievance administrator, made after the acquittal, generated a prosecutorial response that the material was not exculpatory! The grievance administrator agreed. Why bother?

One of the assistant prosecutors who was instrumental in investigating Detroit Mayor Kilpatrick, a lawyer himself, for perjury and obstruction of justice, is now herself the subject of a grievance action, for knowingly permitting perjured testimony by a snitch and two police officers in a drug trial a few years ago. There is also an ethics complaint against an elected prosecutor in another Detroit-area county, for uttering prejudicial pre-trial remarks. Maybe things are changing, but I’ll take a wait-and-see approach.

By: Ruth

Ruth — Tue, 15 Apr 2008 02:53:13 +0000

Another thing to remember is what harm it may do to your future clients to do something like this. For example, in a small town, all the prosecutors and all the defense attorneys know each others’ reputations. And if I were labled as a “snitch,” my clients will suffer. Prosecutors would all (not just the one whom I “ratted out”) be less likely to offer lenient deals based only on my word as to some fact, as they have done previously. They would be more likely to play “hide the ball” with me, which they don’t usually do to me now, and they would be less likely to give me information that they don’t necessarily have to under the Rules, as they do now. In short, they would no longer trust me. I have worked hard on my reputation as an honest and up-front person, and an honest, up-front attorney, to the benefit of my clients. The only circumstance under which I would file a greivance would be after I have exhausted all other means to remedy the problem, including going to the prosecutor involved, their supervisor, and the judge, in that order. In that way, while I may destroy the relationship I had with that particular prosecutor, it would not carry over to the entire office, and would not (hopefully) be detrimental to my clients.

By: Woman in Black

Woman in Black — Tue, 15 Apr 2008 02:44:43 +0000

Goodness, my previous comment was full of typos. More to the point, read Feige’s article on Slate about the Nifong case. The stats in there in terms of the number of cases on appeal where misconduct is found versus how many prosecutors face any kind of sanction are appalling. We should be more proactive, both in training our own and policing our own, and in making the prosecutors play fair.

By: Woman in Black

Woman in Black — Tue, 15 Apr 2008 02:38:28 +0000

I have reported two prosecutors; both of whom no longer prosecute in this state, but neither of whom were sanctioned in any way (even when I won a reversal on…prosecutorial misconduct/breach of plea agreement. After that, I gave up, more or less, though I have on occasion strongly urged a client to report.