Legal ethics

Rare but not unprecedented.

So, apologies all around. For those seeking out new content from me, I apologize for the brief hiatus. For those who hoped I’d stop at 500 posts, I apologize because for not stopping.

For the first of what I hope will be at least another 500, let’s talk about a recent disbarment action that involves disbarment of a type of lawyer that is often discussed as being an infrequent occurrence — a prosecutor.

Roughly two weeks ago, the Kansas Supreme Court entered an over 100-page opinion disbarring a prosecutor with 30 years of experience over her conduct in connection with the prosecution of two separate cases.

One, which went to trial in March 2012 involved allegations of double-homicide. After 10 days of trial testimony from 80 witnesses and almost 1000 exhibits, a jury found the defendant guilty of two counts of first-degree murder with life sentences in prison. That conviction was overturned in 2018 based on prosecutorial misconduct.

The other involved the prosecution of six sex crime cases against a defendant. The Kansas lawyer was serving as a Special Prosecutor in that matter and took two of the cases to trial over the course of five days in June 2017. The jury returned guilty verdicts on multiple charges. That matter was again appealed based on a number of alleged errors at trial including an allegation of prosecutorial misconduct during closing argument. That conviction was also reversed based on cumulative error and a finding was made of an error by the Kansas prosecutor but not misconduct. Importantly, while the handling of this matter was the subject of the disciplinary proceedings, the Kansas lawyer ultimately was found not to have committed any ethical misconduct as to that second proceeding. Thus, in the end, the disbarment was imposed only for misconduct in the handling of one criminal case.

I recently spoke to a large prosecutors’ group from a state other than my own for an ethics presentation. How much, or little, prosecutors may feel targeted by disciplinary authorities definitely differs from state to state. Two things tend to be clear, however. While prominent legal voices will write pretty incessantly about how little discipline is ever meted out against prosecutors, when you talk to prosecutors, they all tend to feel very much like their segment of the bar is singled out for disciplinary prosecution in scenarios where public defenders or even private practice counsel would be spared. The second thing that tends to be clear is that there is a pretty relatively standard recipe for when prosecutors do end up getting disciplined.

Nearly every ingredient in that recipe is present in the story of these two overturned convictions. The first is the fact that the convictions in question were actually overturned. The other involves the nature of the ethical infractions, as other than any allegation of withholding of evidence in violation of RPC 3.8, aspects of all of the other rules that really move the needle in these situations are addressed.

Many of the transgressions involved statements made by the prosecutor in her opening statements and closing arguments. The rules are clear for both prosecutors and other lawyers that there are certain statements that cannot be made during trial, including alluding to matters “that the lawyer does not reasonably believe [are] relevant or that will not be supported by admissible evidence.” That same portion of the rules also can be transgressed by lawyers who become personally wrapped up in their work by stating “personal opinion[s] as to the justness of a cause, the credibility of a witness… or the guilt or innocence of an accused.” With respect to one aspect of the conduct, the prosecutor made statements found to be in direct contravention of court rulings that the subject matter should not be discussed. Often, in instances when there are statements running afoul of those rules made by prosecutors, then disciplinary authorities will also double up the charges by treating them also as conduct “prejudicial to the administration of justice,” contrary to RPC 8.4(d).

But the Kansas story also involves something that is unusual when speaking of the “typical” story of prosecutor discipline but that almost always creates problems for lawyers trying to avoid being disciplined — a conclusion that the lawyer lied under oath to the disciplinary board during the disciplinary proceedings. Here, statements in a sworn statement that ultimately were admitted to be false during cross-examination in the disciplinary proceedings.