Ethical violations: A reluctance to report
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In the comments to my post about prosecutorial immunity yesterday, John raised an interesting point. He writes:
At the VERY least, why do we not see prosecutors grieved, disciplined, reprimanded, made to take remedial ethics classes, etc. when THEY do something unethical? Is it our fault? Should we (defense attorneys) be filing grievances against prosecutors who (as in a case I have pending now) withhold exculpatory information? Should judges (a lot of them former prosecutors here in CT) be taking the lead in seeking sanctions? Why should they not be held accountable?
In a case involving clear prosecutorial misconduct, such as hiding Brady or Giglio material or offering knowingly false testimony to secure a conviction, where a conviction is reversed, does it mean that a prosecutor has violated the Rules of Professional Conduct and if so, do we have a duty to report that to the Grievance Committee?
I think the answer is pretty clear, as I demonstrated in my response to his comment. Yes, there is an ethical violation and yes, there is a duty to report. But stories of such reporting are very scarce. In fact, it seems as though it almost never happens. The Duke lacrosse team case is the only one I can come up with in recent memory where a prosecutor was disbarred (or even reprimanded!) for an ethical violation. Perhaps something will happen as a result of Tim Masters’ exoneration, but even there two of the prosecutors are now judges (IIRC), so it will be an uphill battle.
What if there is no conviction yet, but you discover that a prosecutor has willingly and knowingly withheld exculpatory information. Obviously, you first turn your sights on exonerating your client and getting any charges dismissed, but when that is done, do you file a grievance? I’ve never heard of it happening. Perhaps some more experienced readers can fill in the blanks.
This reluctance to report is not limited to prosecutorial misconduct impropriety alone. Every one of us has seen clear instances of incompetence of fellow counsel in the courtroom. Yet, the question is almost never asked: Is that grievable and do I have a duty to report it?
Why this reluctance? Is it because we work alongside these people on a daily basis and have to interact with them regularly? Is it because we are afraid to “piss off” the prosecutor, who will have the fate of tomorrow’s client in his/her hands? Will the prosecutor seek revenge by taking it out on the obviously guilty client next week? Are we violating some sacred bond between members of the profession by considering reporting a fellow attorney for an ethical violation? Is it just easier to turn a blind eye?
One of the first polls I put up on this site was “Would you ’snitch’ on another attorney?” The options were “Always”, “Never” and “Only if it was really bad”. An overwhelming majority chose “Only if was really bad” (65%). Granted, the sample size was really small - 20 votes. In fact, I asked this very same question nearly one year ago [weirder still is that in April 2007, I also had a post about videotaping interrogations. Go figure]. So maybe it is time for another vote on that poll.
Why do you folks think this is? Or am I way off and are these not “reportable” offenses? Or am I off further still and do people actually report such actions?
[PS: Scott, this is my 5th post today. No more complaining.]
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I can see why a PD would not want to burn a prosecutor. People have long memories when you come after their livelihood.
I think, though, in the case of a really egregious (i.e., deliberate and serious misconduct, e.g., Nifong) violation, you almost have to report.
Sure, but should that stand in your way? Now if, as Scott points out below, there’s no point to it, then maybe you put up your hands and say “forget it”. However, if the grievance process has some teeth, must we turn a blind eye?
First, you are on fire today, both quality and quantity.
As to grieving, because you not only make an enemy, but they never result in sanctions. The NYSACDL started a grievance committee (including a number of ethics professors) to bring grievances on behalf of members in order to protect their identity, and the grievances made were uniformly rejected, including grievances with incredible backup evidence that overwhelmingly proved misconduct. And that’s why.
That’s just awful. What is the point of this grievance committee, then? No wonder you’d be very hesitant to report someone.
The profession protecting its own, once again. Forget about justice and professionalism - the brotherhood comes first at all costs!
Sounds like a bunch of cops to me.
Gid, I am not sure that’s really fair. You simply cannot ask people, as a matter of course, to stick their necks out. If I am a PD, there is a cost, not just to me, to nailing some DA who plays a little fast and loose with the rules. And let’s take another example . . . . judicial misconduct . . . . What do we think of lawyers who fail to rat out judges? Would you rat out a judge? (I am using “rat” in a non-perjorative way.)
No, I’m not saying that anyone is at “fault” or that I think any lesser of them (Lord knows I’m in no position to judge), but that it is a difficult question that needs an answer.
On one hand, you’re right. There’s an individual’s “livelihood” at stake. But on the other, you have an unethical prosecutor that may endanger the liberty of several others.
The same goes for a judge. There needs to be a system for anonymous reporting - but as Scott demonstrates, even that might not work.
And you’re right too. However, let’s not forget that expecting people to figuratively cut their own throats for the sake of others is an expectation that will usually fall flat. I strongly believe in moral courage, and I have shown a pair in my life now and again, but you cannot have a system where people, day in and day out, need to have balls.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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”.