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Cal Bar’s Answer to Qn. 1 from the February 2014 Bar Exam
“CalBar is one of just a handful of courses that has consistently produced answers – by invitation from the Daily Journal – for the past nearly 35 years. The Daily Journal is one of the pre-eminent legal periodicals in California and is a product of the Daily Journal Corporation serving the entire state for over 80 years.”
An analysis of Patty’s ethical violations, applying both California and ABA authorities, is discussed, below.
Both the California Rules of Professional Conduct (CA RPC) and the ABA Rules are consistent in establishing that a lawyer must not bring a proceeding, nor assert an issue therein, unless in good faith there is a legal and factual basis for doing so that is not frivolous.
Patty announced that she was “ready for trial” about 3½ months after she charged Dave with burglary of the shoe store. The forensic investigation by the police department identifying him as the burglar would seem to support her case against Dave as meritorious. In contrast, however, her apparent zeal should have been tempered by the federal report she received prior to announcing ready stating that the forensic investigation was unreliable. At that point, a case could be made that Patty’s prosecution of Dave was frivolous because it may not have been based on credible evidence.
Although Patty’s subsequent knowledge of eyewitness evidence supporting proof of Dave as the burglar affirmatively elevated the charges against him as meritorious, the argument could be made that she committed an ethical violation according to both the CA RPC and ABA Rules when she announced ready for trial absent this evidence. Given the burden of proof in a criminal trial as “beyond a reasonable doubt,” Patty’s reliance on what may have been a faulty forensic investigation — one without corroborative evidence — could reasonably be interpreted as lacking in good faith because the burglary charge could not factually be proved.
Both the CA RPC and the ABA Rules establish that a lawyer participating in litigation must not make an extrajudicial statement that could reasonably be disseminated by means of public communication and that would have a substantial likelihood of materially prejudicing a party to the proceeding, such as a defendant in a criminal case. Inadmissible evidence — such as an opinion as to the guilt or innocence of a defendant or suspect in a criminal case — would be materially prejudicial.
Although Patty did not herself offer an opinion related to Dave’s guilt, it could be contended she committed an ethical violation according to both the CA RPC and the ABA Rules unless she actively worked to prevent the dissemination of the police chief’s press release attesting to Dave as a “transient” and his opinion that Inspector Ing was known for his reliability to “apprehend guilty criminals.” In this regard, the police chief could be argued to be an agent of Patty as the prosecutor. As such, the police chief’s statement would be materially prejudicial given its assertion of the ultimate fact of Dave’s guilt and therefore wholly inadmissible evidence. Proof of this ethical violation by Patty would be compounded given her knowledge of the unreliability of the police forensic investigation, discussed above.
Fairness to Dave as the Defendant and Dave’s Counsel
Again, both the CA RPC and the ABA Rules establish that a lawyer must not unlawfully obstruct another party’s access to evidence having potential evidentiary value.
Here, Patty’s intention not to use the evidence from the police forensic investigation would not excuse her from failing to disclose the federal agency report to Dave’s attorney.
Further, as a prosecutor, Patty is bound by both the CA RPC and the ABA Rules to affirmatively produce potentially exculpatory evidence that could exonerate Dave. The fact that Dave’s attorney never asked her to provide discovery — providing the basis for ineffective assistance of counsel — would not exempt Patty from her ethical duty.
Patty’s failure to provide the federal report relating to the unreliability of the police department’s identification of Dave as the burglar is magnified given the subsequent eyewitness evidence revealed to her. Again, potentially exculpatory evidence from the federal report could be used by Dave in contesting the credibility of the two eyewitnesses’ identification evidence.
Candor to the Tribunal
Both the CA RPC and the ABA Rules establish that a lawyer must not knowingly fail to correct a false statement of material fact previously made to the tribunal or judge. Further, if a lawyer has offered material evidence and comes to know of its falsity, the lawyer must take reasonable remedial measures, including, if necessary, disclosure to the tribunal.
Patty’s evident failure to disclose to the judge the potential material falsity of the police department’s forensic investigation — and especially as it related to the identification of Dave as the burglar — could be construed as a violation of this ethical duty. Merely calling the judge presiding over Dave’s trial to reassure him that there was “ample non-forensic” evidence to convict Dave would not exempt her from her affirmative duty related to the police forensic evidence.
Ex Parte Communication with the Tribunal
The CA RPC permit a lawyer to communicate ex parte with a judge, but it does not include a special duty of candor.
Although the ABA Rules do not permit ex parte communication, a case may be made Patty did not commit an ethical violation per the CA RPC when she called the judge — without consulting Dave’s attorney to inform him she was doing so — to inform the court there was ample non-forensic evidence to convict Dave. The fact she was not candid in identifying the extent of the evidence would not be held against her per the California Rules.
Reporting Professional Misconduct
The ABA Rules establish that a lawyer who knows that another lawyer has committed a violation of the Rules that raises a substantial question as to that lawyer’s honesty or trustworthiness must inform the appropriate authority. In contrast, the CA RPC provide that California lawyers are required to report themselves to the State Bar in certain instances.
Dave’s attorney, applying the ABA Rules, might assert Patty’s honesty and trustworthiness are at issue in the event he ultimately learned of her failure to provide the discovery related to the report from the federal agency — material to the identification of his client as the shoe store burglar.
Unless Patty was sanctioned by the court more than $1,000 for her failure to provide this discovery — and there is no evidence from the facts to suggest this was the case — she would be under no obligation to report herself for an ethical violation in California.
Both the CA RPC and ABA Rules establish that Patty is entitled to act with professional zeal in prosecuting her case, unless in the course of doing so she breaches the duty owed to her profession in violating her ethical duties.
Given the potential ethical violations described, above, a case may be made Patty violated her duty to maintain her professional integrity. Further, Patty’s ethical duties as a prosecutor are supported by Due Process in assuring that Dave’s rights as a defendant in a criminal trial and therefore subject to possible incarceration are guaranteed by fairness. In particular, Patty’s failure to provide discovery bearing on the material fact of his identity as the burglar of the shoe store was especially prejudicial given its lack of fairness.
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