OVERVIEW
Professional Responsibility questions, by nature, are fact-intensive. They always involve a sequence of events that triggers one or more ethical violations thus it is preferably to organize the essay by each act chronologically rather than each rule because first, each act may violate several, possibly conflicting rules of California and ABA authorities.
This question may have posed some difficulty because it asks the duty of a prosecutor rather than that of a lawyer, which tends to appear far more frequently. Because it tends more obscure rules regarding prosecutor, it does not raise rule distinctions between the ABA and California authorities. This question is similar to the one on July 2009.
ANALYSIS
After reading the questions several times, you need to highlight the material facts and outline your essay. Here, I've grouped the facts into three acts around which I would organize the essay and added relevant rules to each.
Issue Spotting and Rule Listing
Three months ago, Dave was arrested for the burglary of a shoe store after a forensic investigation by the police department identified him as the burglar. Patty, a prosecutor, brought burglary charges against him.
Act 1: Doing Nothing for Police Chief's Media Statement Sugguestive of D's Guilt
Rule 1: No public statements that would prejudice a judicial proceeding
A week ago, Patty saw a press release that the police chief was planning to issue to the media. It stated that Dave was a “transient” and had been “arrested for burglary by Inspector Ing, who is known for his ability to apprehend guilty criminals.”
Act 2: Prosecution Without Evidence/Not Disclosing Exculpatory Evidence
Rule 2: Lack of probable cause
Rule 3: Honesty and Candor to the Tribunal
Rule 4: Duty of Diligence/Competence
Four days ago, Patty received a report from a federal agency stating that the police department’s forensic investigation identifying Dave as the burglar was unreliable.
Three days ago, Patty announced “ready for trial” at a pretrial conference. Yesterday, Patty learned that two eyewitnesses had identified Dave as the burglar. Because she did not intend to use evidence from the forensic investigation, she did not disclose the federal agency report to Dave’s attorney. Dave’s attorney has never asked her to provide discovery.
Act 3: Calling the Presiding Judge without the Opposing Counsel
Rule 5: Fairness to Opposing Counsel
This morning, Patty called the judge who will be presiding over Dave’s trial to reassure him that there is ample non-forensic evidence to convict Dave.
What ethical violations, if any, has Patty committed? Discuss.
Answer according to California and ABA authorities.
SKELETON ANSWER
1. Introduction
Under both ABA and CA authorities, Patty owes several duties that are unique to a prosecutor, in addition to her duties as an attorney.
Doing Nothing for Police Chief's Media Statement Suggestive of D's Guilt
An attorney owes a duty of fairness which requires her not to make any statements that she knows or should know will be publicly disseminated and that are likely to prejudice a judicial proceeding. A prosecutor must not broadcast or allow to be broadcast a statement that expresses an opinion regarding the guilt or innocence of a criminal defendant. If a prosecutor knows that an attorney or law enforcement agent under her oversight plans to make such a statement, the prosecutor must make reasonable efforts to prevent the statement from being issued.
Here, Patty saw a press release that the police chief was planning to issue to the media. It stated that Dave was a “transient” and had been “arrested for burglary by Inspector Ing, who is known for his ability to apprehend guilty criminals.”
P is responsible for Police Chief's action and violated the duty because she should have known that the statement would prejudice the judicial proceeding but she nevertheless did nothing. (The Cal Bar's sample answers go into a lengthy discussion about this section.)
Prosecution Without Evidence/Not Disclosing Exculpatory Evidence
Lack of Probable Cause
A prosecutor has a duty to seek justice and not pursue a charge not supported by probable cause. Probable cause exists when the facts known to the prosecutor are sufficient to allow a person of reasonable prudence and caution in the prosecutor's position to seriously entertain the possibility that the defendant is guilty of the crime charged.
Here, Patty received a report from a federal agency stating that the police department’s forensic investigation identifying Dave as the burglar was unreliable. Patty announced “ready for trial” at a pretrial conference.
P violated the duty not to pursue case without probable cause for pursuing the case after learning that the evidence was unreliable.
Duty of Competence and Diligence
An attorney has a duty to competently and diligently represent a client with the required skill, knowledge and experience required for the matter.
Here, Four days ago, Patty received a report from a federal agency stating that the police department’s forensic investigation identifying Dave as the burglar was unreliable.
Three days ago, Patty announced “ready for trial” at a pretrial conference. Yesterday, Patty learned that two eyewitnesses had identified Dave as the burglar. Because she did not intend to use evidence from the forensic investigation, she did not disclose the federal agency report to Dave’s attorney. Dave’s attorney has never asked her to provide discovery.
P also violated the duty for failing to investigate further.
Duty of Duty of Candor/Honesty
Here, Four days ago, Patty received a report from a federal agency stating that the police department’s forensic investigation identifying Dave as the burglar was unreliable.
Three days ago, Patty announced “ready for trial” at a pretrial conference. Yesterday, Patty learned that two eyewitnesses had identified Dave as the burglar. Because she did not intend to use evidence from the forensic investigation, she did not disclose the federal agency report to Dave’s attorney. Dave’s attorney has never asked her to provide discovery.
Act 3: Calling the Presiding Judge without the Opposing Counsel
Ex parte Communication with Judge
A lawyer is prohibited from ex parte communications with a judge unless authorized by court order.
Here, Patty called the judge who will be presiding over Dave’s trial to reassure him that there is ample non-forensic evidence to convict Dave.