Justice Department defends problematic interpretation of prosecutors' duty in case before DC disciplinary authorities

The Blog of The Legal Times is reporting (here) on an interesting story that involves a clash between the U.S. Justice Department and the D.C. Office of Bar Counsel over a former federal prosecutor's alleged ethics transgression.  At issue is the proper interpretation of the District of Columbia's version of Rule 3.8 on "special responsibilities of prosecutors."  The rule is mostly equivalent to the ABA Model Rule with one significant difference.

Both rules state that prosecutors have a duty to timely disclose to the defense "all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense."  This has been interpreted to mean that the duty under the rules of professional conduct is broader than the duty imposed by substantive law.  ABA Formal Opinion 09-454 clearly explains that the duty under rule 3.8 is more extensive than the federal constitutional obligation.  In particular, Rule 3.8 is not limited to material evidence nor is it limited to information that is likely to lead to an acquittal.

The problem is that the DC version of the rule added a sentence to its comment that says that the rule  "is not intended either to restrict or to expand the obligations of prosecutors derived from the United States Constitution, federal or District of Columbia statutes and court rules of procedure."

Thus, even though the actual language of both rules is the same, the extent of the duty described has been interpreted differently.  The Dept of Justice wants the DC rule to be read to impose a duty to disclose information only if the information is material.  The DoJ's brief in the case - In the Matter of Kline - is available here.  The brief of the office of Bar Counsel is available here.

This is a tough one because the DC rule's comment says what it says and it is pretty clear.  You can make the argument that it is pretty clear the drafters of the rule wanted it to be interpreted differently than the drafters of the ABA model rules.  The problem is that that would be a bad interpretation.  I happen to agree with the ABA's view on this.  The ethical duty should be broader; it should not be limited by materiality.  Yet, it seems the authorities in DC thought otherwise when they drafted their version of the rules.  It will be interesting to see how this issue is resolved.  I hope DC decides to amend the comment and join the ABA in its approach to the prosecutor's duty.

For more on the story, go to the Blog of the Legal Times which has more details and links to relevant documents in the case.