Former prosecutor sues DA's office claiming he was fired for refusing to act unethically

A man who worked for several years as a prosecutor in Corpus Christi, Texas is suing the District Attorney's office arguing that he was fired because he refused to act unethically. 

According to this story aired in Action News 10 and published here, the prosecutor says he lost his job for following his duty under the law.  According to the complaint (as explained in the story), when the prosecutor uncovered a witness who had the potential to help someone he was prosecuting, his bosses told him not to share the information with the other side.  Instead, the prosecutor called the State Bar of Texas for an opinion which confirmed he had a duty to disclose the information.  Following his duty, however, the prosecutor told his supervisors he was going to disclose the witness and was fired the morning of the trial.

Bar counsel taking plea deals to avoid disbarment? What would you do?

 Mike Frisch (Georgetown) who runs the Legal Profession blog has posted a great question: 

You are Disciplinary Counsel in your jurisdiction. You have completed an investigation and believe you have persuasive evidence that the Respondent attorney has engaged in acts that amount to intentional misappropriation of entrusted funds.

The presumptive sanction for such misconduct in your jurisdiction is disbarment absent extraordinary circumstances. Disbarment, in functional effect, is a five-year suspension with any reinstatement conditioned on proof of the Respondent's present fitness to practice law.

Respondent, through counsel, approaches you with an offer to consider. The attorney tells you that the Respondent knows he likely will eventually be disbarred. Respondent is 67 years old and wishes to retire without the stigma of disbarment. He offers to immediately accept a three-year consent suspension with any possible reinstatement conditioned on proof of fitness.

You know (1) that a fully litigated case might take five years or longer to result in disbarment, (2) the three-year suspension will mean there is virtually no possibility of actual reinstatement in less than five years, and (3) the earliest that an interim suspension will be imposed is when there is a board report that approves a hearing committee finding of the charged misconduct. That happy event is likely at least two to three years away.

So, you can get Respondent out of the practice today. He accepts the functional equivalent of the most severe sanction but avoids the Mark of Cain. He may (but then, may not) try to get his license restored someday.

Do you take the deal if your system gives you the authority and responsibility to do so? If your system does not permit a consent disposition under these circumstances, is there something wrong with your system? 

Please go here to post your comments on this question.

As for me, I think I would take the deal because under the circumstances it would likely result in the equivalent of permanent disbarment (given the attorney's age and plans to retire).  Others might disagree and I am willing to be convinced I am wrong...

To me, the worst part of the scenario is the fact that disbarment is only the equivalent of a five year suspension.  If it were up to me, disbarment would always be permanent. 

Four things the next attorney general needs to know about the indigent defense crisis in the U.S.

The Sixth Amendment Center, a non-profit organization founded to assist states and local governments in meeting their constitutional obligation to provide competent counsel to the indigent accused, has posted an important comment on the indigent defense crisis in the United States.  You should read it here.

Top Professional Responsibility Stories of 2014

The Legal Ethics Forum has published its annual list of top stories for the past year here.  There is also a link to a list of stories on Canadian PR here.

NY State Bar issues opinion on whether an attorney can disclose confidential information in order to rebut comments by a client on a website

A couple of months ago, the New York State Bar Association Committee on Professional Ethics issued an opinion on an interesting question:  “When a lawyer’s former client posts accusations about the lawyer’s services on a website, may the lawyer post a response on the website that tends to rebut the accusations by including confidential information relating to that client?”

Holding that the "self-defense" exception to the duty of confidentiality does not apply to this type of case,  the Committee answered "no."  You can read the opinion (Opinion 1032 (10/30/2014)) here. The Committee finds that the "self-defense" exception should be limited to cases involving allegations of lawyer wrongdoing in formal proceedings such as legal malpractice or other civil actions, disqualification proceedings, or sanctions motions.

The result seems sensible to me.  An ttorney would not be allowed to discuss confidential information about this matter with another person (say, someone who read the review and asks the attorney about it), so it would make sense the attorney can't disclose the information to the world at large.  In both instances, the attorney is not "defending" against an action by the client but addressing comments made by the client.  Take the website aspect out the equation and what you have is a former client talking to others and the attorney wanting to take a chance to give his/her side of the story to the same audience.  The attorney is free to do so, but can't disclose confidential information in the process.

The fact the comments are "published" (on the website) and can reach a much wider audience should not change the analysis.  The Committee suggested, however, that the answer might be different if client had somehow waived his expectation of confidentiality by posting the comments.  The Committee did not address that possibility because question was not presented by the facts before the committee. 


h/t The Lawyers Ethics Alert Blog

NY Times and ABA Journal on the interview with Robert McCulloch

Yesterday, I commented on the recent interview with Bob McCulloch, the St. Louis County prosecutor who handled the Grand Jury proceeding against Darren Wilson in Ferguson, Missouri, in which he seems to admit to having used perjured testimony.  Today, the New York Times and the ABA Journal picked up the story (here and here).  Both mentioned the fact that McCulloch admitted to allowing a certain witness to testify even though he "was sure" she was not telling the truth.

Again, if the prosecutor was "sure" the witness was not telling the truth, then why is allowing her to testify not a violation of the duty not to present false evidence?   Is saying that he was sure she was lying the same as saying he "knew" she was lying?  Or, is saying that he was sure simply saying that he strongly suspected that the witness was lying, but did not actually know it?

If it is the former, he admitted to violating the rules.  If it is the latter, he did not. 

Federal District judge finds that certain aspects of the Florida rules regarding advertising violate First Amendment

Almost exactly one year ago, I reported on a challenge to the advertising rules in Florida (here).  Coincidentally, just a few days ago, the Lawyers Ethics Alerts blog reported that a Federal Southern District Judge issued an opinion (apparently in a different case) granting summary judgment in favor of those challenging the rule (and against the Florida Bar) and enjoining the Bar from enforcing it. The case is Robert Rubenstein v. The Florida Bar. You can read the order/injunction here.

Did the St. Louis County prosecutor admit to a violation of the rule regarding perjury?

Below you will find a video of a radio interview with Bob McCulloch, the St. Louis County prosecutor who handled the Grand Jury proceeding against Darren Wilson in Ferguson, Missouri.  The interview is interesting for many reasons, but the part that really caught my attention was the discussion about the possibility that some of the witnesses committed perjury.

This discussion starts at the 9 minute mark of the recording.  The interviewer asks "Why did you allow people to testify in front of the grand jury in which you knew their information was either flat-out wrong, or flat-out lying, or just weren't telling the truth?" In response, McColluch is vague as to whether he agrees with the premise of the question (that he knew some of the witnesses were not telling the truth), but later he specifically says it was clear some of the witnesses were not telling the truth and, further, admits that he would not normally use witnesses like those - that he did that specifically for this one case. Later he adds that he was "absolutely sure" that some witnesses lied under oath, but that he would not seek perjury charges (at minute 16:15 or so).

Was that an admission that he knowingly presented false evidence/perjured testimony?

Are the rules related to grand juries so different that they allow the knowing use of false evidence in an effort to have the jury assess credibility?  That is how McCulloch tries to explain his conduct. He states that "I knew that no matter how I handled it, there would be criticism of it. So if I didn't put those witnesses on, then we'd be discussing now why I didn't put those witnesses on. Even though their statements were not accurate. So my determination was to put everybody on and let the grand jurors assess their credibility, which they did. ...I wanted to put everything on there. I thought it was much more important to present everything and everybody, and some that, yes, clearly were not telling the truth. No question about it."

If the prosecutor was so concerned with how "we'd be discussing now why I didn't put those witnesses on," let try this on for size: How about stating "because I have an ethical obligation not to put those witnesses on the stand.  Those witness are lying and the system can't function if we allow prosecutors to knowingly use false evidence."  That wouldn't be so difficult, would it?

I understand the prosecutor's decision to allow the witnesses to testify if he merely believed, but did not know, that they were lying. That essentially means he thought they had poor credibility and that it would be better to let the jury assess that credibility.  Allowing witnesses to testify when you have doubts as to whether they are telling the truth (as long as there is no knowledge) is not a violation of the rules.  But the prosecutor here used different language. He essentially said he knew they were lying. Once you have knowledge, the rule is clear.

Maybe the prosecutor meant the former but said the latter.  Otherwise, I think he admitted to using false evidence. I should clarify that this is not an admission of suborning perjury because suborning suggests he encouraged the witness to lie. Here what he seems to admit to is allowing someone to testify falsely when he knew they were lying. That is not suborning perjury but it is knowingly using false evidence which is a violation of Rule 3.3.

In the end, the question is whether the comments should be interpreted to mean he knowingly violated the rules or that he merely had doubts as to the credibility of the witnesses and allowed the jury to decide, which would not be a violation of the rules.  

Here is the video:

Richard Zitrin on what's going on in California

Richard Zitrin (UC Hastings) has published a column in The Recorder on what has been happening in California.  As you know, not too long ago, the state's supreme court rejected a proposal to substantially change the state's rules of professional conduct.  This was followed by the dismissal of a member of the Board of the State Bar, who followed up with a lawsuit.  It is quite an intriguing story.  You can read the article here.

Debate on the need for special prosecutors

A couple of days ago I posted a link to an article discussing prosecutorial discretion and what The New York Times called a "prosecutor's inherent conflict of interest" in cases that involve the possible indictment of police officers.  I also posted a link to a discussion in the Legal Ethics Forum on whether the prosecutor in Ferguson, Missouri had a conflict of interest.

As part of that discussion, many are calling for the use of special prosecutors in cases involving police officers.  The New York Times' Room for Debate has published five short comments on this issue here.