“Nobody likes a rat.” That was the money quote from the “Arizona Republic’s” four installment series on prosecutorial misconduct that ran at the end of October.
Sure Michael Kiefer’s investigative report was comprehensive and localized with Arizona cases and personalities. And yes, the incisive reporting was just edgy enough to irritate the prickly prosecutors here.
But it was the money quote uttered by Karen Clark, a local attorney interviewed for the series that underscored the problems facing the legal profession when it comes to its self-ballyhooed self-regulation. Members of the legal profession who ‘tattle’ are ‘rats.’
So much for the self-celebrated aspirational ideals and ‘purty’ prose enshrined in lawyer preambles.
Fear of consequences.
As for Kiefer’s series on prosecutors, the most telling conclusion an objective reader can draw is that in the final analysis — the adverse consequences attendant to reporting lawyer or judicial misconduct too often work against those disclosures.
Offering solutions, one bar counsel attorney says, “We need a culture that says lawyers are obligated by rule and moral considerations alike in policing our own profession . . . where defense attorneys are not afraid to report prosecutorial misconduct for fear that the prosecutor’s office will retaliate against their clients.” And another commentator opining on judges unwilling to report on fellow judges — calls for a judicial culture that doesn’t worry so much that “countenancing disclosure of misbehavior” undermines public confidence in the judiciary.
But as for reining in misbehaving prosecutors, one view is that the imposition of sanctions — like overturning a conviction — is a step too far. Some courts deem it preferable to instead find just enough thin-reed justification to avoid forcing a reversal. So much for Blackstone.
The most well-known and mind-boggling instance was U.S. v. Ofshe where the Eleventh Circuit managed to uphold a conviction — even though the prosecution had invaded the privileged communications between the defendant and his defense lawyer.
And what was especially shocking was that the defense lawyer sold out his own client by covertly acting as a government informer. While still representing the defendant, the lawyer agreed to wear a recording device so that the government could listen in on his client meetings. The fruit of that electronic surveillance was then used at the criminal trial to secure his conviction. Did the court find demonstrable prejudice? Nah!
With jaw-dropping implausibility, the appellate court held, “After considering the totality of the circumstances presented in this case, we hold that the actions of the government were not so outrageous as to ‘shock the universal sense of justice.’ Therefore the district court’s denial of the motion to dismiss is affirmed.”1
Any wonder law professor Ellen Yaroshefsky declares that “Judges rarely report misconduct, even though they are mandatory reporters.”
And pointing fingers elsewhere, Maricopa County Attorney Bill Montgomery rejoined to the Arizona Republic, “If courts are not enforcing the Rules of Professional Responsibility as they pertain to the conduct of defense attorneys and prosecutors, they are then responsible for what goes on in court.”
The “widely ignored” Ethical Rule.
But as it happens, there’s ER 8.3, the ethical rule2 that’s supposed to guide lawyers on this. Too bad it’s less than helpful. “A lawyer who knows that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects, shall inform the appropriate professional authority . . . .” Seems uncomplicated and easy to understand, doesn’t it? Not when you’re guiding lawyers.
What information, for example, satisfies what a lawyer “knows” and what about a duty to investigate before reporting? And what totality of circumstances give rise to “a substantial question”?
Not surprisingly, Charles Wolfram quoted at “Self Regulation and the Duty to Report Misconduct Myth or Mainstay?,” says of ER 8.3, “Probably no other professional requirement is as widely ignored by lawyers subject to it.”
Plus the rule varies by jurisdiction. Again invoking that cheerless rodent reference, there’s “No Duty to Rat in California” says one criminal defense lawyer — whereas in Louisiana, an oft-cited Supreme Court Opinion states, “a lawyer is subject to discipline for not reporting misconduct.”3
But most of all what causes some minds pause, is the fear of giving testament to what irascible Colonel Slade in Scent of a Woman declaimed to the Baird School, “You’re building a rat ship here — a vessel for sea-going snitches.”
Clark, who represents lawyers in state bar discipline matters, is also an expert witness on ethics. Calling them as she sees them, her four words underscore the magnitude of the problem the profession has with consistently following its ethical duty to report professional misconduct.
More significantly, the reluctance to ‘snitch’ highlights why some commentators posit that self-regulation is a myth and that the continued use of the term not only conflates all the external actors who co-regulate the profession but also “muddies the conceptual dividing line between lawyer self-restraint, professional codes that guide and monitor lawyers, and judicially-controlled discipline of the bar.”
And it’s also why still other observers make cost-benefit arguments against self-regulation altogether. “As the prestige of the legal profession has eroded, so too have the costs of being sanctioned by professional bodies. Censure by a bar association does not carry much of a social stigma when the bar itself is not viewed with respect. Rational lawyers will not spend resources to protect the reputation of their profession if there is little to protect.“4
So where is the oversight? The Innocence Project’s Stephen Saloom sums it up, “Individuals, whether fellow prosecutors, defense counsel, parties, or judges, ‘don’t feel that they can report it, or they don’t know how . . .and ‘lawyer oversight entities rarely address misconduct.'”
Depressing but hardly shocking stuff. There’s that quote and more in Helen Gunnarsson’s insightful recap of a prosecutorial misconduct symposium held along with the American Bar Association’s Annual Meeting, “Panelists Examine How Prosecutors Can Be Held Accountable for Misconduct.”
At that symposium, one recommendation called for seasoned criminal defense lawyers to be integrated into bar disciplinary departments and offices of lawyer regulation. They’d bring skills, experience and most of all — a different mindset to the knee-jerk prosecutorial inclinations of bar regulatory departments investigating and prosecuting charges of attorney unethical conduct.
Protesting too much.
Lastly, a shout-out to Matt Brown at his Tempe Criminal Defense Blog for his post, “99.9996 Percent Of Prosecutors Are Better Than That,” which took down an unsurprising defensive group response from 20 local prosecutors who denounced the Arizona Republic’s series as a ‘hack job‘ and “a smear-over to all prosecutors.”
And yesterday, self-appointed moral guardian and county attorney Bill Montgomery had even more to say. He again beat his pulpit and his chest in indignation at the newspaper for doing “more to demean and insult the men and women responsible for holding criminals accountable . . . than it did to contribute to a meaningful discussion of capital litigation and how our justice system actually works.”
I won’t go into the rest of Montgomery’s Op-ed, “Prosecutors’ improved training, oversight ignored” but I will highlight his disingenuous final paragraph. It’s where he picks one more bone with the investigative journalist.
Montgomery denies he’s ‘lobbying’ “on issues surrounding medical marijuana and Arizona laws protecting the unborn.” And a tad sarcastically he lectures, “I am a named defendant in lawsuits involving these issues. There is a difference between litigating and lobbying. A 10-year court watcher should know that.”
Fact is, Montgomery is much more than just a named defendant on those issues. He was the prominent public face against the legalization of medical marijuana, engaging in several drug war policy debates in opposition.
And as for averring otherwise on ‘lobbying’ for the unborn, earlier this month, the non-‘lobbying’ Montgomery “was given the 2013 Witness for Life Award for his vigorous defense of Arizona pro-life legislation, including his pending petition to the U.S. Supreme Court to hear the AZ 20 week ban.”
 At least the court footnoted that the prosecutor and lawyer had acted so reprehensibly it might warrant discipline. See United States v. Ofshe, 817 F.2d 1508 (11th Cir. 1987)
 See Macey, Jonathan R., “Occupation Code 541110: Lawyers, Self-Regulation, and the Idea of a Profession,” 74 Fordham Law Review 1079 (2005). Faculty Scholarship Series. Paper 1377.
Photo Credits: screenshot of James Cagney from the film G Men via Wikimedia CommonsSelf made screen capture from a public domain film trailer; Licencing information : http://www.creativeclearance.com/guidelines.html#D2 work is in the public domain in that it was published in the United States between 1923 and 1977 and without a copyright notice; “Blackstone’s ratio,” by Kazvorpal at Wikimedia Commons under the terms of the GNU Free Documentation License, Version 1.2 o.