TN BPR releases two more “stealth” ethics opinions

Earlier this month, and again in a fashion that seems a bit more in keeping with NOT wanting people to know they’ve been released rather than to give advice and guidance intended to be disseminated far and wide, the Board of Professional Responsibility here in Tennessee issued two new Formal Ethics Opinions.

The only way to know they had been released would be to have not only paid attention to a Board Notes newsletter that was sent out, but to also have gone in and read said newsletter to see that it contained these two FEOs.  Other than being quietly rolled out at the same time, the two FEOs do not have much in common.

One, 2018-F-165, blesses – with a laundry list of caveats – lawyer participation in an unnamed legal marketplace website that would essentially be a bit like an eBay for legal services where people looking to hire lawyers could pay for access to the site to post requests for needed services and lawyers interested in being hired could pay for access to the site and purchase the right to make a certain number of bids for services.  You can go read the opinion if you’d like here, but I’m not inclined to spend any real time talking about it because there really isn’t much to say about it and the service it addresses simply doesn’t sound, realistically, like much of the kind of thing any regular consumer is going to be seek to use since it would require the consumer to pay merely to have the ability to use it to try to hire lawyers.  (I could be wrong about that, of course, but, even so, this particular opinion is not of the earthshaking variety.)

The other is one that I do want to discuss at some length.  It weighs in on whether the ethical duty of a prosecutor under RPC 3.8(d) is the same as the duty to disclose under the constitutional series of cases most readily referredto in shorthand as Brady.

First, based on numbering alone, it is has been in the works and obviously on hold for a bit.  It is 2017-F-163.  It is a bit silly for the Board to stick with, and insist on titling it a 2017 opinion, since it was signed on March 15, 2018.  (For context, Opinion 165 was signed on March 9, 2018.)  Though, in fairness, perhaps the Board decided to stick with a “2017” title for this FEO because it didn’t update its research from the summer of 2017 when it crafted this particular opinion.  This can readily be gleaned from the fact that footnote 4 still cites to a 2005 Louisiana Supreme Court opinion as part of a “majority of states hold[ing] that the ethical duty of a prosecutor is broader and extends beyond Brady.”  That decision though was overruled/repudiated by the Louisiana Supreme Court in October 2017 in In re Seastrunk:

We reject ODC’s efforts here to broaden Rule 3.8(d) beyond that which Brady and its progeny mandates, and specifically find that the duties outlined in 3.8(d) and Brady are coextensive

Second, the opinion unfortunately persists in speaking of a prosecutor’s ethical duty of disclosure as going to “favorable” evidence.  This is not a helpful approach because it isn’t what the rule being interepreted actually says.  At all.  RPC 3.8(d) doesn’t use the term “favorable evidence,” and this opinion truly should not either.

What RPC 3.8(d) speaks of [other than with respect to sentencing] is the duty to disclose “information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense.”  Those are objective categories of things and not susceptible to the kind of subjectivity that is involved in trying to decide whether people agree as to the status of evidence as “favorable.”

Third, and related to the second, the opinion’s ultimate conclusion that the ethical duty under RPC 3.8(d) is “broader than and extends beyond Brady” is an acceptable conclusion to reach to the extent it is intended to mean that the actual language of the rule and what it says must be disclosed is not to be read to include the word “material” before “information” but, and particularly given the erroneous reference to what has to be disclosed as “favorable evidence,” it is also a woefully incomplete message to send to the bar and to prosecutors without also expressly explaining that the ethical duty is also narrower than Brady in some respects.

Specifically, what is missing from this opinion, to further explain to the public and to members of the bar generally and to remind prosecutors specifically, is language along the lines of the following:  It should be noted, however, that there are aspects of the disclosure requirements of Brady that are broader than the disclosure requirements of RPC 3.8 as well.  One example being that Brady may require disclosure of information that would provide a basis for impeachment even if it was not evidence that tended to negate the guilt of the accused.

 

North Carolina – Good intentions leading to a pretty seemingly bad rule.

So North Carolina has got quite a bit going on these days.  Last night UNC won the NCAA Men’s Basketball championship.  A few days ago, its general assembly kind of, sort of, repealed the bathroom bill that brought it much negative publicity and cost it some sporting events.  And, in March 2017, it adopted a first-of-its-kind ethics rule that seeks to require all lawyers — not just prosecutors — to reveal any evidence of the innocence of someone that comes into their possession after the person has been convicted.

Tennessee, I am proud to say, is among the “Sweet Sixteen” of other states that have adopted the ABA Model Rule 3.8(g) and (h) language that imposes this kind of duty upon prosecutors, but North Carolina’s act of going further to say that all attorneys have this obligation — at a mandatory level and when not doing so could somehow lead to discipline — seems very misguided to me.

Now because this is being written on the Internet, and because taking things out of context and ascribing intents and beliefs not intended to things written on the Internet is pretty much a sporting event itself these days, I feel beholden to make the point that — obviously I am not in favor of anyone being convicted of a crime they didn’t commit and I very much count myself in the category of folks who agree with the “it’s better that 10 guilty people be set free than 1 innocent person be imprisoned” line of thinking.  Also, I absolutely think that if an attorney comes across solid evidence that would indicate someone has been convicted of something they didn’t do, then an attorney ought to be encouraged to try to do something about that.

Nevertheless, I am not at all a fan of the idea of constructing an ethics rule that would require a lawyer to do so on pain of discipline.  Not even in the abstract because the architecture of such a rule would have to weigh in the balance too many other ethical obligations a lawyer might have that would compete.  I’m also not a fan of North Carolina’s specific effort to do so — North Carolina RPC 8.6 — which actually does attempt to  balance those competing obligations and in so doing, I think, actually proves the inherent pointlessness of this line of proposed rulemaking.

So, step by step, here is black-letter of North Carolina’s Rule 8.6.  The first paragraph establishes the initial scope of the duty.

(a) Subject to paragraph (b), when a lawyer knows of credible evidence or information, including evidence or information otherwise protected by Rule 1.6, that creates a reasonable likelihood that a defendant did not commit the offense for which the defendant was convicted, the lawyer shall promptly disclose that evidence or information to the prosecutorial authority for the jurisdiction in which the defendant was convicted and to North Carolina Office of Indigent Defense Services or, if appropriate, the federal public defender for the district of conviction.

So, as a starting point, this duty would override obligations of client confidentiality that would otherwise require a lawyer to remain quiet.  But obviously that creates some problems.  So, the next paragraph carves out exceptions to the obligation.

(b) Notwithstanding paragraph (a), a lawyer shall not disclose evidence or information if:

(1) the evidence or information is protected from disclosure by law, court order, or 27 N.C. Admin. Code Ch. 1B §.0129;

(2) disclosure would criminally implicate a current or former client or otherwise substantially prejudice a current or former client’s interests; or

(3) disclosure would violate the attorney-client privilege applicable to communications between the lawyer and a current or former client.

So, the exceptions still do not allow Rule 1.6 concerns to prevent disclosure (unless, I guess, breaching certain 1.6 client confidences would be considered “otherwise substantially prejudic[ing] a current… client’s interests”), but the exceptions to protect the subset of Rule 1.6 communications that would also be protected as attorney-client privilege and protect a lawyer in the event that complying with Rule 8.6(a) would require them to put one of their own clients or former clients in jeopardy of criminal prosecution.  Thus, Rule 8.6(b) essentially makes certain that Rule 8.6(a) will not apply to the most reasonably likely scenarios in which any lawyer who isn’t a prosecutor is going to learn of information indicating that someone has been wrongfully convicted.

The next paragraph, for good measure, also provides the same kind of “good faith”/exercise of professional judgment safeguard in place for private lawyers that Rule 3.8 provides for prosecutors:

(c) A lawyer who in good faith concludes that information is not subject to disclosure under this rule does not violate the rule even if that conclusion is subsequently determined to be erroneous.

The final paragraph then proceeds to make clear that no duty to disclose arises when the lawyer knows that the right people essentially already know.

(d) This rule does not require disclosure if the lawyer knows an appropriate governmental authority, the convicted defendant, or the defendant’s lawyer already possesses the information.

So, in the end, and as Professor Bruce Green is quoted as saying in a few of the news articles about the development, “it carves out so much that it’s hard to known when it will apply.”  I think that’s a kinder way of saying:  Other than whatever encouraging effect it might have on some small set of lawyers who wouldn’t otherwise step up and do the right thing to let authorities know about something if doing so wouldn’t violate their duty to another client or former client, this rule is not really going to accomplish much and is probably largely unenforceable.

And while that encouraging effect might be a laudable goal, pursuing it through this kind of rule seems the wrong way to go about it.  If you are truly going to insist on something like this in a jurisdiction, it would be better pursued as a purely aspirational rule.  We already have one of those with respect to the obligation to do pro bono.

Legal Ethics Issues in “Making a Murderer” – Part 1 of ?

So, the latest rage in Netflix binge-watching is the documentary “Making a Murderer.”  If you haven’t been engaged in a digital detox program over the last month or so, then you are likely aware of its existence.   My wife and I just finished it up last evening.  If you haven’t watched it, you really should as it is quite compelling.  It will only take you roughly 10 hours if you do it in one sitting, I’ll wait here until you get back.

Ok.  Great.  Pretty compelling stuff, huh?

Now, I have my own views about the cases, the documentary, how it makes me feel about the system, etc.  (In addition to watching the series, I’ve also spent some time on the internet reading about the underlying case and things that were left out, etc.)  But I’m not going to get into a bunch of that on this blog because, strictly speaking, even the “law of lawyering,” doesn’t encompass many of the topics worth discussing.  On the broader issue, I will say just this (I guess):  I have no doubt that there was more to the prosecution case presented to the jury than was presented during the documentary.  This would have to be true given the length of the trial versus the length of the documentary.  (I will say that, even before scouring the web to read articles to reward myself for staying unspoiled during the run of watching the show, I found it fascinating on reflection that almost none of what we saw, and what was explored, in the documentary had anything to do with what, if any, motive the prosecution offered for why the accused would have murdered the victim.  Concurrently, though, there also was no exploration of what, if anything, the defense lawyers said and did to exploit the notion that there seemed to be no motive for the commission of the crime).  If you have already watched the documentary series, and want to learn just a bit more through articles that will certainly spoil you as to the current state of affairs for the subjects of the series if you haven’t watched, you could do worse than to read these three pieces: here, here, and here.

The popularity of this documentary and the issues it touches on does provide excellent fodder for occasional discussions of certain legal ethics issues.  I really wasn’t sure I was going to do tackle any of them here, but then I finally remembered (somewhere between watching Episodes 6 and 7 and last night’s watching of the final three episodes) from where I knew the name of the lead prosecutor.  I covered his 4-month suspension from the practice of law in my 2014 Ethics Roadshow.  I won’t pile on about the details of that because, at least at a surface level it has nothing to do with the case(s) explored in the documentary, but I will give you this link that points to that story itself if you want to go familiarize yourself.

What I do want to explore – and see if I can do so in way that doesn’t truly spoil anything for someone who hasn’t watched the series yet — is an instance of conduct, involving the prosecutor, that seemed to me at the time I was watching to clearly have run afoul of the lawyer ethics rules.

There is a memorable press conference, shown in Episode 3, held by the prosecutor.  You can read a transcript someone has made of the entire third episode online just by ginning up a decent Google search and that will get you the transcript of the remarks at the press conference.

Wisconsin, like most states, has (and had at the time of the press conference) an ethics rule governing a lawyer’s ability to make certain public statements about a pending matter in litigation.  Under the ABA Model Rules now (and back then), that rule is RPC 3.6, conveniently titled “Trial Publicity.”  RPC 3.6(a), applicable to lawyers in civil and criminal cases alike, is broadly designed to prevent lawyers from “mak[ing] an extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.”  At first blush, the kind of statements made in the press conference would certainly appear to be statements that are extremely likely to materially prejudice not one but two trials.  RPC 3.6(b)(2), however, goes on to make clear that, despite the general prohibition, a lawyer is still permitted to make an extrajudicial statement about “information contained in a public record.”  Which would mean that as long a lawyer puts enough detail into a court filing, repeating those details in a press conference would not violate RPC 3.6.

But, lawyers who are prosecutors also have special duties under another ethics rule, RPC 3.8.  And, under the ABA Model Rules, there exists a provision, RPC 3.8(f), that reads as follows:

except for statements that are necessary to inform the public of the nature and extent of the prosecutor’s action and that serve a legitimate law enforcement purpose, refrain from making extrajudicial statements comments that have a substantial likelihood of heightening public condemnation of the accused and exercise reasonable care to prevent investigators, law enforcement personnel, employees, or other persons assisting or associated with the prosecutor in a criminal case from making an extrajudicial statement that the prosecutor would be prohibited from making under Rule 3.6 or this Rule.

Now, if a rule like this had applied to the Wisconsin prosecutor, the press conference shown in Episode 3 would have violated this rule about six ways from Sunday.

Wisconsin, however, did not then (and does not now) have this rule in place.  Wisconsin has specifically declined to follow the ABA on this topic.  Thus, my initial instinct was wrong.  Whatever else I may think about the decision to hold the press conference and to have made the statements made (and the New York Times article I linked above indicates that the prosecutor himself has said he regrets holding that press conference), as long as the same contents were in the publicly-filed criminal complaint, then it would not have been an actionable violation of RPC 3.6 or 3.8 in Wisconsin.

Approximately 30 other states, including Tennessee, do have a provision identical to, or strongly similar to, RPC 3.8(f) and, thus, such a press conference by a prosecutor in those states would be a potentially disciplinable offense.

At some point, I will write a post about the troubling ethics issues raised by the acts and omissions of one of the lawyers for the minor defendant whose arrest was part of the subject matter of the press conference, but not today.

 

 

“Were you aware of it?” – Friday edition (A tale of two AGs)

Were you aware that 4% of the state attorneys general (attorney generals?) in the United States have been indicted already in August 2015?  Well, they were.  First, Texas’ Attorney General was indicted as we learned when his indictment was unsealed on August 3, 2015.  Then, Pennsylvania’s Attorney General was indicted on August 6, 2015.

For Pennsylvania’s AG, the indictment was a culmination of a slow drip of negative publicity and public accusations of wrongdoing.  In fact, back in December, a grand jury had recommended that Pennsylvania’s AG be criminally charged, so the specter of having to mount a defense to criminal charges has been looming over her head for all of 2015.

As to the Texas AG, the indictment seemingly came out of the blue.  Texas’s AG had been in the news, and under public scrutiny of late, because of his public reaction to the U.S. Supreme Court’s ruling on same sex marriage and his issuance of a legal opinion to county clerks in Texas about how they could refuse to issue licenses if doing so violated their religious beliefs.  A group of lawyers actually had filed a bar complaint against him over that opinion in July 2015, in no small part, likely because he went so far as to go on record calling the Supreme Court’s decision a “lawless ruling” and making disparaging statements about the Justices while also, as the complaining lawyers saw it, advocating for county clerks to violate their oath of office.  I found the willingness of a collection of lawyers to sign off on that bar complaint to be a fascinating development, but really before I could find the time to write about it the Texas AG found himself with bigger problems.

Pennsylvania’s AG is a Democrat; Texas’s AG is a Republican.  Like the two AGs, the two indictments differ pretty significantly, most importantly, the Texas AG was indicted for alleged conduct while in private practice before taking office — alleged securities fraud and failure to register with the proper regulatory board — while the Pennsylvania AG has been indicted for allegedly violating grand jury secrecy to get political payback and then lying about it under oath.  If you’d like to dig in more to the backstory and allegations about the Pennsylvania situation, here is the link to a pretty thorough Pittsburgh Post-Gazette story.

In addition to now being criminal defendants, there is one other thing these two AGs have in common and that is that they each agree that they can continue to do their job despite facing criminal charges.  From a common sense standpoint, that seems like a logical answer from their perspective.  And, even if you scrutinize the additional layer of ethical obligations imposed on prosecutors under ethics rules such as ABA Model Rule 3.8, there is nothing inherently impossible about the idea that they can diligently and competently perform their jobs despite their circumstances.

There are two final things though that I find interesting about the developments.  The first is that both of these AGs were elected in public elections; thankfully, at least for now, Tennessee does not have such a state of affairs as we have an unique approach where our AG is chosen by the our Tennessee Supreme Court.  Admittedly, I have no idea what role politics plays in either or both of these indictments, but I certainly worry about the prospect that Tennessee will open up the position of its state AG to popular vote.

The second is, I hope, an entirely human reaction to one detail in the story about the Texas AG’s indictment … why in the world would there be a system in place in a Texas county to usually have those arrested wear a towel in their mug shots?  What’s that about (was what I wondered as it seemed really arbitrary and weird).  Turns out though there is actually a method (I guess) to that madness, as this article explains that having a gray towel draped over the shoulders in every booking photo helps with witness identifications from mug shots to not be distracted by clothing in the photo.