Lawyer's Responsibility to Legal Profession: Special Role of Public Prosecutor; Reporting Professional Misconduct; Must Not Inhibit Disciplinary Complaints

Question 1

What are the special rules for a PROSECUTOR in a CRIMINAL CASE (9)?

Answer 1

1. REFRAIN from prosecuting charge that prosecutor KNOWS is not supported by PROBABLE CAUSE;
2. make REASONABLE EFFORTS to ensure that the accused has been ADVISED of RIGHT TO COUNSEL and given REASONABLE OPPORTUNITY to obtain counsel;
3. DO NOT SEEK to obtain from an UNREPRESENTED ACCUSED a WAIVER of important pre-trial rights, such a s right to preliminary hearing
4. Make TIMELY DISCLOSURE of all information KNOWN to prosecutor that tends to negate guilt or mitigate
5. REFRAIN from making EXTRAJUDICIAL COMMENTS that have a SUBSTANTIAL LIKELIHOOD of heightening PUBLIC CONDEMNATION of the accused
6. Exercise REASONABLE CARE to PREVENT investigators or other persons assisting prosecutor from making EXTRAJUDICIAL STATEMENT that the prosecutor would be prohibited from making
7. NOT SUBPOENA A LAWYER to present evidence against a client UNLESS prosecutor REASONABLY BELIEVES:
   (i) information is NOT privileged;
   (ii) evidence is ESSENTIAL; AND
   (iii) there is NO FEASIBLE alternative
8. PROMPTLY DISCLOSE NEW, CREDIBLE, and MATERIAL evidence that creates a REASONABLE LIKELIHOOD that a convicted D did not commit the subject offense, and if the conviction occurred in the prosecutor’s jurisdiction, make a REASONABLE INVESTIGATION into the possible wrongful conviction
9. SEEK TO REMEDY a conviction when prosecutor KNOWS of CLEAR AND CONVINCING evidence that a D in IN HER JURISDICTION was convicted for an offense he did not commit

Question 2

Under the RPC, what is the rule with regards to reporting professional misconduct?

Answer 2

A lawyer MUST inform appropriate authority IF:

1. HE KNOWS
2. that another lawyer has violated RPC;
3. that raises a SUBSTANTIAL QUESTION as to that lawyer’s HONESTY or FITNESS as a lawyer

NOTE –> this is required even if other lawyer is non-practicing

NOTE –> violation need not have anything to do with law practice

NOTE –> same rule applies to knowledge of judge violating judicial conduct

Question 3

Under the RPC, with regards to reporting professional misconduct, does the rule required the disclosure of privileged or confidential information?

Answer 3

No

Question 4

Does CA have a rule requiring reporting professional misconduct of other attorney or judge?

Answer 4

NO.

CA lawyers are required to report THEMSELVES to state bar under certain circumstances.

Question 5

Under CA law, under what circumstances must lawyer report themselves to state bar? (6)

SS CCC D

Answer 5

SS CCC D

1. SUED for malpractice 3 times in 12 months
2. SANCTIONED more than $1,000 (except for discovery sanctions)
3. found CIVILLY LIABLE for fraud, breach of fiduciary duty, or the like;
4. CHARGED with a FELONY
5. CONVICTED of certain SERIOUS CRIMES
6. DISCIPLINED in another jurisdiction

Question 6

In CA, what is the rule w regards to inhibiting disciplinary complaints?

Answer 6

In CA, a lawyer MUST NOT –> MAKE or SEEK an agreement (either as party or lawyer for a party):

(i) prohibiting person from reporting professional misconduct claim or settlement;
(ii) requiring a person to withdraw or refrain from cooperating with such a claim; OR
(iii) providing that the record fo any civil action for professional misconduct be sealed from review by the disciplinary agency