STATE-BY-STATE INDEX OF ETHICS ADVISORY,
ATTORNEY DISCIPLINARY, AND APPELLATE OPINIONS

The following is a state-by-state listing of ethics advisory, attorney disciplinary, and appellate opinions, involving or related to ethical issues of interest to prosecutors, found through research of the opinions issued in each of the fifty states.

Some of the indexed opinions, for which the Center has received permission to post, are available on this site as pdf documents; those that are available are the exclusive work product of the Court from which they come. Most of the other documents may be located using the links located on the links page of this site (some will require use of Westlaw™ or another similar research site).

The Center will continually update this index by adding and, as necessary, deleting topic headings and ethics advisory, attorney disciplinary, and appellate opinions. Please notify the Center if an error is discovered or if you are aware of additional topic headings or ethics advisory, attorney disciplinary, and appellate opinions that should be included.

 

ALABAMA

Ethics Advisory Opinions

• AL (1993-09) Prosecutor may represent estate of deceased homicide victim with consent of estate and supervisor.
• AL (1990-05) In child support cases, attorney is vicariously disqualified when another prosecutor was substantially involved in matter.
• AL (1994-10) District attorney is not vicariously disqualified even though newly employed assistant has participated in criminal cases as defense counsel so long as new assistant is adequately screened from participation.
• AL (1995-10) Lawyer may prosecute criminal defendant represented by lawyer’s brother if lawyer’s office and brother’s client both consent.

Attorney Disciplinary Opinions

• Ex parte Lawhorn, 581 So.2d 1179 (Ala. 1991).  New Rules of Professional Conduct applicable to prosecutors.
• Brooks v. Alabama State Bar, 574 So. 2d 33 (Ala. 1990).  Because prosecutor had reason to believe conduct not governed by Code of Professional Responsibility, based on language in prior Supreme Court opinions dealing with rules governing conduct of attorneys, due process prohibited imposition of discipline on prosecutor under Code.
• Bert P. Noojin v. Alabama State Bar, 577 So. 2d 420 (Ala. 1990).  Attorney’s disciplinary suspension from practice of law due to misdemeanor contempt conviction overturned and case remanded to Disciplinary Board for further consideration due to circumstances surrounding disciplinary process, including improper delay in proceedings and one-year suspension as part of sentence on misdemeanor conviction.
• Dowling v. Alabama State Bar, 539 So.2d 149 (Ala. 1988).  Attorney cannot use campaign materials that are misleading.  “Judge Brian Dowling for District Judge” implied that candidate was judge when was not.
• Trammell v. Disciplinary Bd. of Ala. St. Bar, 431 So. 2d 1168 (Ala. 1983).  Attorney disbarred for accepting money to bribe member of Board of Pardons and Paroles.
• In Matter of Smith v. Bd. of Commissioners of Ala. St. Bar, 284 Ala. 420, 225 So. 2d 829 (1969).  Attorney disciplined for conspiring to prevent true and accurate records to be kept relating to divorce cases filed in court.

Appellate Decisions

ALASKA

Ethics Advisory Opinions

• AK (1982-2) Prosecuting attorney married to judge can continue to prosecute cases if safeguards are followed.
• AK (1984-3) Improper for prosecutor to instruct prospective witness that witness should insist on presence of prosecuting attorney, or to otherwise interfere with means of defense interview; prosecutor’s advise on subject of defense interviews should be limited to merely advising witness that witness is free to chose, whether or not, he wishes or declines to be interviewed

Attorney Disciplinary Opinions

• In matter of McNally, 901 P.2d 415 (Alaska 1995).  Attorney disciplined for failure to appear on calendar call for two separate criminal cases.
• In re Schuler, 818 P.2d 138, 141 (Alaska 1991).  District Attorney’s conviction for misdemeanor theft warranted two years' suspension, in light of mitigating circumstances.  In rendering its decision, the Court discussed the injury caused by the prosecutor’s actions:  “…the duty here was one owed to the public. In light of Schuler's position as District Attorney, his commission of a crime undoubtedly undermined confidence in the legal profession.  The public most certainly expects obedience to the law by those with authority to prosecute others for its violation. It undermines the foundations of our criminal justice system to uncover a public servant violating the very statutes he is entrusted with enforcing.  By committing a crime, Schuler violated his oath of office as District Attorney for the State of Alaska, and weakened the moral authority of the state to condemn other violations of the criminal law.  We therefore conclude that Schuler's misdemeanor theft caused "serious" injury under the relevant ABA Standards.”
• In Disciplinary Matter Involving Walton, 676 P.2d 1078 (Alaska 1984).  Attorney given public censure for creating and admitting document that purported to be first deed of trust when it actually was subordinate deed.
• Matter of Stump, 621 P.2d 263 (Alaska 1980) (Overruled as to degree of presumptive discipline in Matter of Buckalew, 731 P.2d 48 (Alaska 1986)).  Attorney suspended for five years for manufacturing document for use in his own behalf in civil case and falsely testifying that it was authentic.
• In Matter of Conduct of McNabb, 395 P.2d 847 (Alaska 1964).  Attorney disciplined for failure to appear at pretrial conferences in five different cases.

Appellate Decisions

ARIZONA

Ethics Advisory Opinions

• AZ (1985-6) District Attorneys office not considered “firm” for purposes of imputed disqualification.
• AZ (1987-19) Discovery of confidential communications between juvenile criminal defendant and his lawyer.
• AZ (1994-07) While Rule 3.8(d) might require disclosure of death of state’s witness, local discovery rule (an equivalent of Model Rule 3.4) did require disclosure; if officer had been listed as witness, prosecutor has obligation to notify defense of witness’ death; to do otherwise would be to deceive and mislead defendant and be prejudicial to administration of justice; disclosure should be made before defendant is asked to respond to any plea offer.
• AZ (1995-03) Opinion addresses propriety of lawyer surreptitiously recording telephone conversation with opposing counsel.
• AZ (1995-08) Lawyer may enter into plea agreement that includes waiver of post-conviction and collateral rights without violating ethical rules.
• AZ (1998-02) Opinion addresses whether prosecutor has duty to report criminal defense attorney’s ineffective assistance as counsel to state bar.
• AZ (2000-09) No per se conflict when part time prosecutor works as law enforcement officer.
• AZ (2000-10) Attorney working for Legal Defender’s Office may work on case opposite significant other as long as certain guidelines followed
• AZ (2001-13) Prosecutors may reveal substance of discussions with law enforcement witnesses; such discussions are not considered client confidences under ethical rules.

Attorney Disciplinary Opinions

• In Matter of Peasley, 208 Ariz. 27, 90 P.3d 764 (2004).  Prosecutor disbarred for intentionally presenting perjured testimony through police detective to establish critical fact in two separate capital murder trials.  Substantial experience, dishonest motive and repeated misconduct were all aggravating factors.
• In re Zawada, 208 Ariz. 232, 92 P.3d 862 (2004).  Prosecutor suspended for improper cross-examination of defendant’s expert in mental defense case (despite fact prosecutor aware that all mental health experts, including prosecution’s, had concluded criminal defendant mentally ill, prosecutor cross-examined defense experts intimating that experts made up mental illness diagnosis).  Prosecutor also committed violation in closing argument by attempting to cause jury to convict based on fear of future crimes by defendant.  Lengthy experience as prosecutor found to be aggravating factor because prosecutor knew actions were improper and his violations were intentional.
• In re Jett, 180 Ariz. 103, 882 P.2d 414 (1994).  Judicial misconduct committed when municipal court judge called and had her abusive boyfriend arrested and then, acting in her judicial capacity, went to detention facility and signed order for his release.
• Matter of Hansen, 179 Ariz. 229, 877 P.2d 802 (1994).  Assistant city prosecutor censured for telling court and defense counsel that complaining witness did not appear when in fact witness had appeared and prosecutor had told her she was free to leave.  When court did not recess until following day as anticipated, prosecutor told court witness had not appeared to cover her mistake.
• Matter of Horwitz, 180 Ariz. 20, 881 P.2d 352 (1994).  Attorney’s substantial usage of illegal drugs and reckless conduct while operating vehicle resulting in two deaths warranted disbarment.
• Matter of Offenhartz, 173 Ariz. 382, 843 P.2d 1274 (1992).  Defense counsel suspended for ineffective representation, i.e., representation that was so deficient that was likely different result would have been obtained by competent counsel.
• In re Ockrassa, 165 Ariz. 576, 799 P.2d 1350 (1990).  Prosecutor suspended for representing State in case against former client.  New charge was felony DUI which required proof of previous DUI convictions, and prosecutor had represented defendant on previous DUIs.  Defendant denied previous convictions.  Defendant’s new counsel had suggested that prosecutor withdraw, and prosecutor had refused.

Appellate Decisions

• State v. Talmadge, 196 Ariz. 436, 999 P.2d 192, 197 (2000). Rebuking counsel for their “general unwillingness of trial counsel to make reasonable concessions to accommodate one another toward the goal of achieving factual stability on the record,” the Court cited to Rule 3.8 of the Rules of Professional Conduct and noted that ”[t]he duty to accomplish justice is particularly imposed on prosecutors.”

ARKANSAS

Ethics Advisory Opinions

• AR (2003-02) Law partner of part time judge may handle criminal matter outside judge’s jurisdiction.

Attorney Disciplinary Opinions

Appellate Decisions

CALIFORNIA

Ethics Advisory Opinions

• CA (1966-05) In regard to telephone recording, ethical rules applied to public officials are same as applied to private attorneys.
• CA (1976-39) Improper, after trial, to inform juror of inadmissible facts of prejudicial or aggravating nature.
• CA (1976-40) Opinion addresses whether prosecutor can inform victim of possible civil remedies.
• CA (1979-49) Opinion addresses propriety of communications with represented criminal defendant in different matter.
• CA (1984-83) When public defender is married to district attorney, they must disclose such information to client and court.
• CA (1986-87) Opinion addresses whether prosecutor should disclose criminal defendant’s past criminal record at sentencing hearing when that information is on public record.
• CA (1987-93) Deputy District Attorney must disclose to court relationships with bailiff or court reporter.
• CA (1989-106) Opinion addresses propriety of dismissal conditioned on defendant stipulating that there was probable cause for arrest and relieving police from civil liability.

Attorney Disciplinary Opinions

• In matter of Brown, 2 Cal. State Bar Ct. Rptr. 309 (1993).  Attorney, who had been disbarred for conspiring with clerk of court to lower DUI charges to reckless driving upon guilty pleas, met burden of proof required to show that he was rehabilitated and it was recommended that he be reinstated to Bar of State of California.  Opinion contains review of reinstatement procedure and burden of proof.
• In Matter of Respondent A, 1 Cal. State Bar Ct. Rptr. 255 (1990).  Attorney disciplinary proceedings dismissed where court found attorney communicated with jurors post-trial, but had no intent to harass, embarrass or influence further jury service.

Appellate Decisions

• Santa Barbara v. Superior Court, 122 Cal. App. 4th 17, 18 Cal. Rptr. 3d 403 (Cal. App. 2 Dist. 2004). City attorney’s office not disqualified on basis of incoming lawyer’s conflict in ordinary civil case, even if incoming lawyer did substantial work for former client, as long as city attorney’s office creates and maintains ethics wall to protect confidentiality of attorney-client communications in previous representation.

COLORADO

Ethics Advisory Opinions

• CO (1982-60) Lawyer has affirmative duty to surrender incriminating evidence in his possession, but must not reveal identity or communications of client; if lawyer only observes incriminating evidence as result of representation of client and does not handle, disturb or alter it, he must not disclose observations to authorities.
• CO (1982 & 1995-62) Ethical considerations arising from prosecutor’s dismissal of criminal charges for release of civil claims.
• CO (1984-65) Unethical for attorney or his representative to advise or to imply to potential witness that he should not submit to pre-trial interview by opposing counsel
• CO (1994-96) Opinion addresses propriety of ex parte communications with represented persons during criminal and civil regulatory/investigations and proceedings.
• CO (1995-70) After verdict has been returned, it is improper for attorney who has participated in trial to tell jury about information that was not presented at trial, if such information is disclosed to jury with intention of or in spirit of criticizing jury’s decision, influencing actions of jurors in future jury service, harassing jury, or otherwise behaving improperly toward jurors in any manner prohibited by Code of Professional Responsibility
• CO (1996-64) Opinion addresses duty to report ethical violation and knowledge one must have to make such determination.
• CO (1998-102) In criminal proceeding, lawyer may not issue or cause to be issued subpoena without providing copy of subpoena to opposing counsel.
• CO (2000-108) Opinion addresses ethical obligations when attorney receives privileged or confidential documents inadvertently disclosed by opposing party.

Attorney Disciplinary Opinions

• In re Roose, 69 P.3d 43 (Colo. 2003).  Attorney disciplined for walking out of courtroom during course of trial.  Court had specifically ordered attorney to stay in courtroom.
• People v. Smith, 74 P.3d 566 (Colo.O.P.D.J. 2003).  Attorney suspended for nine months for failure to adequately supervise non-lawyer staff person (paralegal) who neglected client’s matter.
• In re Attorney C, 47 P.3d 1167, 1171 (Colo. 2002).  Prosecutor alleged to have violated Rule 3.8(d) by failing to turn over evidence to defense prior to preliminary hearing.  As a matter of first impression, Court addressed whether 3.8(d) incorporates a materiality standard.  “We have explicitly adopted a materiality standard with respect to our procedural [discovery] rules, and we are disinclined to impose inconsistent obligations upon prosecutors.  We therefore also adopt a materiality standard as to the latter, such that we read Rule 3.8(d) as containing a requirement that a prosecutor disclose exculpatory, outcome-determinative evidence that tends to negate the guilt or mitigate the punishment of the accused….  We clarify that the materiality standard relates not to a specific proceeding in the criminal case, which could be a hearing on a bond or a hearing on the admissibility of certain evidence unrelated to the withheld evidence, but rather to the broader criminal proceeding itself. Material evidence, in this sense, is any evidence tending to be outcome determinative at trial.  However, materiality itself is not time-sensitive, and does not come and go depending upon the nature of the next hearing.  We do not accept the argument that the evidence need only be disclosed in advance of a proceeding at which that evidence would be specifically determinative.  Rather, we conclude that if evidence is material to the outcome of the trial, then the prosecutor must disclose that evidence in advance of the next critical stage of the proceeding--whether the evidence would particularly affect that hearing or not.”  Court concluded that while prosecutor not timely disclose evidence subject to disclosure under 3.8(b), ethical rule was not clear, as it had not previously been interpreted by Court, and prosecutor’s actions could not be held to be intentional.  Therefore no violation of 3.8(d).
• In re Attorney C, 47 P.3d 1167 (Colo. 2002).  Application of rule of professional conduct regarding special responsibilities of prosecutor in criminal trial requires court to impose materiality standard; when prosecutor is aware of exculpatory evidence before any critical stage of proceeding, it must be disclosed before proceeding takes place; rule of professional conduct governing duty of prosecutor to timely disclose exculpatory evidence includes mens rea of intent; and, under facts of this case, failure to disclose exculpatory evidence to counsel for accused until after preliminary hearing did not violate rules of professional conduct.
• In re Cardwell, 50 P.3d 897 (Colo. 2002).  Defense counsel disciplined for making knowingly false representations to prosecutor regarding client’s criminal history to induce plea agreement and to court for sentencing purposes.
• In re Pautler, 47 P.3d 1175 (Colo. 2002).  Deputy District Attorney disciplined for misrepresenting himself as public defender in attempt to convince wanted murder suspect to turn himself in.  Court held that ‘[n]o imminent public harm exception existed to the ethical principle that a lawyer may not engage in deceptive conduct, and thus deputy district attorney who deceived a murder suspect in order to encourage his surrender was not justified in violating the professional conduct rule prohibiting conduct involving dishonesty, fraud, deceit or misrepresentation.”
• People v. Mucklow, 35 P.3d 527 (Colo. 2000).  Prosecutor violated duty to disclose when he failed to inform defense, before preliminary hearing in sexual abuse case, that child victim had recanted portions of her earlier statements and advanced new and different version of prior events.
• People v. Mucklow, 35 P.3d 527, 537-538 (Colo. 2000).  Prosecutor failed to disclose fact that complaining witnesses had recanted/changed stories to defense, in two separate cases, prior to preliminary hearing; in one case, prosecutor acted on advice of elected prosecutor.  Court, referring to ABA Model Rules of Professional Conduct, noted that prosecutor’s obligations to see that accused is accorded procedural justice and that guilt is decided upon basis of sufficient evidence, including consideration of exculpatory evidence known to prosecution, goes beyond corollary duty imposed upon prosecutors by constitutional law.  “The Rules of Professional Conduct, unlike the rule of law enunciated in Brady, are not premised upon minimal constitutional conformity. Rather, the Rules of Professional Conduct are intended to set forth minimum standards of professional conduct for attorneys licensed to practice law.  In most instances, compliance with the Rules' provisions is tested against the conduct of the attorney, not the effect of that conduct upon others.  Because Colo. RPC 3.8(d) focuses only upon the attorney's conduct, unlike the requirements of Brady and the cases which apply its constitutional mandate, the effect of the questioned conduct upon the underlying criminal proceeding is not relevant for purposes of determining whether a violation of the rule transpired.” Noting that what constitutes timely disclosure for purposes of Rule 3.8(d) depends on facts and circumstances of each case, Court held prosecutor’s decision to not turn over exculpatory information in both cases prior to preliminary hearings because she believed information would not change outcome of proceedings is not valid reason to circumvent Rule 3.8(d).  Interesting dissenting opinion (taking position that insufficient evidence of violation of Rule 3.8).
• People v. Bonner, 927 P.2d 836 (Colo. 1996).  Defense counsel in criminal case disciplined for not reviewing police reports, preliminary hearing transcript or anything else after being retained by defendant.  When court became aware of same, it informed defendant and allowed him to hire new counsel.  Complaint with disciplinary authority was filed.
• People v. Janiszewski, 901 P.2d 476 (Colo. 1995).  Attorney disciplined for asking questions in jury trial which specifically called for information ruled to be inadmissible in pretrial hearing.  Attorney also mentioned that evidence in closing argument.
• People v. Reichman, 819 P.2d 1035 (Colo. 1991).  Prosecutor disciplined for filing sham complaint and preparing sham report against undercover police officer in order to help protect identity of police officer.
• People v. Brown, 726 P.2d 638 (Colo. 1986).  District Attorney disbarred after he was convicted of altering official documents.  He prevailed upon employee of driver control bureau to alter his driving record by deleting two convictions for speeding because they were resulting in higher insurance premiums.
• People v. Tucker, 676 P.2d 680, 681 (Colo. 1983).  District Attorney billed two counties in his district for same expenses related to attendance of convention in company of female informer.  During his criminal trial for related theft, he testified on cross-examination to not know the whereabouts of female companion when, in fact, he had purchased airline ticket for her month earlier to travel out-of-state under assumed name.  Finding that Tucker’s “conduct while in office not only contravened Colorado criminal statutes, but also flagrantly violated minimal standards of candor and honesty required of all who are admitted to the practice of law in this jurisdiction”, Court suspended him from practice of law.
• People ex rel. Colorado Bar Ass’n v. ____, Attorney at Law, 90 Colo. 440, 442-443, 9 P.2d 611 (Colo. 1932).  Part-time Deputy District Attorney disciplined for submitting claim for reimbursement of secretary’s full salary when he only paid half salary, rest being paid by person with whom he shared office space.  Court also found the district attorney’s filing of civil suits arising out of same facts for which he was prosecuting defendant criminally to constitute misconduct.  “This anomalous conduct could not be made to square with professional ethics by his later withdrawal from the criminal cases.  The merest novice in the profession should know that civil liabilities may not be enforced by threats of criminal prosecution any more than they may be enforced by threats of physical violence, and that any conduct which has the appearance of a resort to such course is as bad, in law, as the thing itself.  If B did not use his public office to collect the claims of his private clients, he put himself in the position of appearing to do so and justified the charge.  If a prosecutor in this state has a private interest in a criminal case under his jurisdiction, it is made the court's duty to appoint another to act for him.  In such a case he should not act even by consent.”
• People v. Anglim, 33 Colo. 40, 78 P. 687 (1904).  District Attorney disbarred for accepting money from saloon keepers and gamblers in return for not prosecuting them, as well as demanding money from victim in theft case to commence prosecution.

Appellate Decisions

• People v. Julien, 47 P.3d 1194 (Colo. 2002). Fact that judge was team leader in District Attorney’s Office five weeks before his assignment to defendant’s case was not sufficient basis for disqualifying judge, where judge did not participate in case against defendant.
• People v. Witty, 36 P.3d 69 (Colo. App. 2000). District Attorney’s Office disqualified from prosecution of defendant who had earlier been charged with unrelated theft from District Attorney Office’s retirement plan and was defendant in related civil suit.
• People v. Merchant, 983 P.2d 108 (Colo. App. 1999). Prosecutor not disqualified because may have represented defendant’s mother while in private practice.
• People ex rel. Sandstrom v. District Court In and For County of Pueblo, 884 P.2d 707 (Colo. 1994). Prosecutor’s simultaneous involvement in criminal case and forfeiture case did not require disqualification of prosecutor, since neither prosecutor nor office would receive personal benefit from outcome of either case.
• People v. County Court, City and County of Denver, 854 P.2d 1341 (Colo. App. 1992). Special prosecutor appointed where prosecutor initiated and became involved in physically subduing defendant and in effecting arrest, and deputy prosecutor became complaining witness against defendant in new charges arising from altercation with prosecutor.
• McFarlan v. District Court In and For Fourth Judicial District, 718 P.2d 247 (Colo. 1986). Prosecutor is not disqualified where member of former law firm represents co-defendant.
• People v. Son, 723 P.2d 1337, 1342 (Colo. 1986). Prosecutor’s communication with defendant, which related solely to unrelated criminal charges and not pending charges for which defendant had counsel, was not in violation of disciplinary rules. “To hold that DR7-104(A)(1) is violated by any communication between a defendant who has obtained counsel on pending charges and agents of the prosecution would preclude prosecutorial agents from investigating possible obstructions of justice such as jury tampering, bribery, or intimidation of witnesses. Accepting the defendant's interpretation of DR7-104(A)(1) would convert the rule into a shield of immunity from investigation for subsequent criminal acts committed by a defendant who has acquired the services of counsel in connection with a criminal charge. We decline to construe DR7-104(A)(1) in such a manner….”
• People v. Garcia, 698 P.2d 801 (Colo. 1985). Entire staff of District Attorney disqualified where deputy district attorney was called as witness for prosecution on bail bond violation, and his testimony was relevant and necessary to prove essential element of offense charged.
• Pease v. District Court In and For Ninth Judicial District, 708 P.2d 800 (Colo. 1985). Entire staff of District Attorney’s Office was disqualified where two attorneys in office were expected to provide testimony relevant and material to issue of defendant’s guilt, despite fact two attorneys had recently resigned from office.
• People v. Rubanowitz, 688 P.2d 231, 248 (Colo. 1984). Prosecutor’s investigator in charge of general investigation into activities of group to which defendant belonged. While investigator interviewing child named as child abuse victim in subsequently filed information against defendant, defendant unexpectedly entered child's residence, interrupted interview, and began to describe group’s activities. Investigator told defendant to stop talking and consult his attorney. Three days later, Investigator and others met with defendant and defendant's attorney; defendant volunteered certain information and agreed to provide Investigator with documentary evidence related to group. Defendant’s attorney told him not to talk with or disclose any documents to police in his absence. Investigator subsequently met with defendant on two occasions without defendant’s attorney; defendant provided investigator with documents at both meetings. Investigator did not advise defendant of his Miranda rights at any time after initial meeting. Court rejected defendant’s contention that investigator’s actions violated disciplinary rule by finding that defendant, who had counsel and acted contrary to his advice, knew he was subject of investigations and, therefore, “policy of advance warning to potential defendants which underlies ABA Standard 3-3.2(b) and Disciplinary Rule 7- 104(A)(1) was fully satisfied here.”
• People v. Stevens, 642 P.2d 39 (Colo. App. 1981). Special prosecutor should be appointed where former attorney for defendant joined District Attorney’s Office.
• People v. Mulligan, 568 P.2d 449 (Colo. 1977). Citing to ABA Standards Relating to Fair Trial and Free Press, ABA Standards Relating to The Prosecution Function, and Code of Professional Responsibility, Court stated could not condone participation of prosecutor and deputy prosecutor n radio interview about case.
• People v. Jiminez, 528 P.2d 913 (Colo. 1974). Part-time prosecutor may practice civil law in matters unrelated to performance of official duties.

CONNECTICUT

Ethics Advisory Opinions

Attorney Disciplinary Opinions

• Notopoulos v. Statewide Grievance Committee, 85 Conn. App. 425, 857 A.2d 424 (2004).  Attorney disciplined for making reckless comments in letter to judge about probate judge’s purported acceptance of money to perform duties in estate when he had no evidence of same.
• Massameno v. Statewide Grievance Committee, 234 Conn. 539, 663 A.2d 317 (1995).  Case arose from allegations that prosecutor had talked to complaining witness in unauthorized absence of her attorney in violation of Rule 4.2, had prosecuted case in absence of probable cause as required by Rule 3.8, had violated Rules 3.4 and 3.5 by requesting psychiatric assessment of child witnesses, and Rule 4.4 by improper cross-examination of defense witness.  Proceedings stayed until prosecutor’s assertion that separated of powers doctrine prohibited judicial branch from disciplining prosecutors.  Court, thoroughly analyzing the issues involved, held judicial supervision of attorneys through disciplinary process does not violate separation of powers doctrine when applied to prosecutors.  [Outcome of disciplinary proceeding not known.]

Appellate Decisions

• State v. Lopez, 271 Conn. 724, 859 A.2d 898 (2004). Failure to have defendant present during in-chambers hearing deciding whether conflict of interest required disqualification of his trial counsel was error requiring reversal.
• State v. Boulier, 81 Conn. App. 824, 841 A.2d 1217 (2004). A prosecutor involved in plea negotiations with defendant may file additional charges and seek greater sentence if defendant does not accept State’s offer provided prosecutor does not act with vindictiveness.
• State v. Jones, 180 Conn. 443, 429 A.2d 936 (1980), overruled on other grounds, State v. Powell, 186 Conn. 547, 442 A.2d 939 (1982). Fact that partner in prosecutor’s law firm represented defendant’s father regarding property damage claim did not require disqualification of prosecutor from prosecution of defendant, since property claim did not involve son in any way.

DELAWARE

Ethics Advisory Opinions

• DE (1979-02) After hung jury, prosecutor may not speak with juror about juror’s frustration with outcome and areas that gave jury difficulty.
• DE (1989-05) Attorney is not prohibited from representing criminal defendants while spouse is prosecutor with Attorney General’s office, provided safeguards are put in place.
• DE (2003-01) Solicitor may not give legal advice to city police trial board and police association dealing with same disciplinary case.

Attorney Disciplinary Opinions.

• In re Guy, 756 A.2d 875 (Del. Supr. 2000).  Defense attorney disciplined for failure to interview known potential defense witnesses, failure to properly inform defendant of possible consequences of rejection of plea offer, failure to attend first scheduled sentencing appearance, and failure to file appeal in timely manner.
• Matter of Ramunno, 625 A.2d 248 (Del. 1993).  Attorney disciplined for referring to opposing counsel in “crude, but graphic, anal term” heard only by court.  Court found attorney in contempt and fined him $150.00.  Attorney appeared in same court following day and asked court to recuse itself, arguing that judge might be mad at him from previous day.  When court assured counsel that he did not get mad, counsel responded with, “You get even.  Is that what you are saying?”  Court again found counsel in contempt and fined him again.  Ethics complaint followed, and Supreme Court held that Ramunno’s conduct constituted unprofessional conduct warranting public censure.

Appellate Decisions

• U.S. v. Gordon, 334 F. Supp. 2d 581 (D. Del. 2004). Attorney who represented county in grand jury investigation of corruption could not represent county official who was indicted for activities investigated by that grand jury.

DISTRICT OF COLUMBIA

Ethics Advisory Opinions

• DC (1983 -129) Opinion addresses ethical considerations that arise with employees of adverse party who is represented by counsel.
• DC (1992-229) Attorney cannot make misrepresentations about tape recording meeting with opposing party.
• DC (1996-263) According to Rule 4.2, attorney cannot communicate with represented person without that person’s attorney’s consent.
• DC (2001-303) Unaffiliated lawyers may share office space and related services as long as they don’t compromise confidentiality.
• DC (2001-308) Prosecutor who left private practice for government service owes continuing obligations to former clients.

Attorney Disciplinary Opinions

• In re Sims 861 A.2d 1 (D.C. 2004).  Attorney for driver’s license administrative board disbarred for fixing tickets for family members and friends.  Conviction for misdemeanor arising out of said conduct involved moral turpitude.

Appellate Decisions

• Al Odah v. U.S., 346 F. Supp. 2d 1 (D.D.C. 2004). Government’s proposed real time monitoring and classification review procedures for legal mail and attorney notes “impermissibly burden the attorney-client relationship and abrogate the attorney-client privilege.” Court offered alterative procedure.

FLORIDA

Ethics Advisory Opinions

• FL (1964-72) Prosecuting attorney before county judge’s court may not act as defense counsel in criminal cases in same county.
• FL (1966-01) Law partner of an assistant state attorney may not engage in criminal defense practice.
• FL (1968-35) Not appropriate for associate of state attorney to take criminal defense appointment.
• FL (1968-57) Conflict of interest exists when attorney serves as public defender and county prosecuting attorney simultaneously.
• FL (1969-26) Prosecutor should not sit as judge in court he normally prosecutes in.
• FL (1970-38) Conflict of interest exists when part-time prosecutor or member of firm handles criminal defense work.
• FL (1970-43) Ethical considerations dealing with publicity for those representing governmental interests are similar to attorney’s representing private individuals.
• FL (1972-46) Subject to any constitutional privilege, lawyer should not originate public statements pertaining to litigation in which he is involved.
• FL (1972-48) No conflict of interest exists when county lacks number of attorneys needed to take criminal defense cases and newly appointed assistant state attorney and partner continue to serve as court-appointed defense counsel.
• FL (1973-09) Not improper for full-time assistant state attorney to give legal advice concerning purely civil matters.
• FL (1975-14) Conflict of interest exists when firm of part-time assistant attorney represents public body in suit in which state attorney will be served with process for response on behalf of public.
• FL (1976-04) Prosecutor may use confidential information gained from law enforcement in criminal prosecution in relative civil action against law enforcement.
• FL (1978-05) In some circumstances, attorney cannot serve as prosecutor when his partner serves as criminal defense lawyer.
• FL (1990-04) Rule 4-4.2 governing communications with person represented by counsel contains no exceptions for activities of U.S. Department of Justice attorneys.
• FL (1994-02) Attorney may advise crime victims of existence of civil restitution lien remedy provided by 1994 Act, but attorney must also inform victim that attorney only represents state and should advise victims to seek independent counsel regarding their legal rights.
• FL (1995-70) In some circumstances, it is improper for attorney to communicate with jury after trial has ended.

Attorney Disciplinary Opinions

• In Re Kinsey, 842 So.2d 77 (Fla. 2003). Former prosecutor/judicial candidate’s platform stressing allegiance to police officers and pledging to help police by putting criminals where they belong (“behind bars”) and to “bend over backwards” to protect victims violated canon of ethics prohibiting candidate from making statements that commits candidate with respect to cases likely to come before court.
• The Florida Bar v. Von Zamft, 814 So.2d 385 (Fla. 2002).  Prosecutor disciplined for ex parte communication with judge, personal friend with whom he was having lunch, regarding motion in capital murder case after being told by judge not to discuss case.
• Tyson v. Florida Bar, 826 So.2d 265, 268 (Fla. 2002).  Incarcerated defendant filed complaint against prosecuting attorney for failure to disclose evidence and use of perjured testimony; Bar counsel investigated and found no basis for complaint.  Defendant then petitioned Court to issue writ of mandamus requiring Bar proceed with disciplinary proceeding.  In rejecting petition, Court reiterated that “purpose of an attorney disciplinary proceeding is the protection of the public, not the vindication of private rights:  ‘Disciplinary proceedings against attorneys are instituted in the public interest and to preserve the purity of the courts.  No private rights except those of the accused attorney are involved.’  Accordingly, petitioner had no clear legal right to have the Bar proceed with disciplinary charges against the assistant state attorney and therefore is not entitled to the mandamus relief he seeks.”
• The Florida Bar v. Cox, 794 So.2d 1278 (Fla. 2001).  Prosecutor suspended for concealing testifying informant’s true name from defense counsel, judge and jury.  Prosecutor knew informant’s correct name but, listed her on complaint by name she had used during Internet child pornography investigation.  Witness had admissible prior convictions.  Presumptive penalty was disbarment. 

Appellate Decisions

• Wallace v. State, 689 So.2d 1159, 1164 (Fla. App. 1997), quashed on other grounds, State v. Wells, 734 So.2d 402 (Fla. 1999). “There is no presumption of prosecutorial vindictiveness when additional charges are filed, even at the beginning of trial, after a defendant's refusal to plead guilty to the initially charged crimes.”
• Reaves v. State, 574 So.2d 105 (Fla. 1991). Prosecutor who previously defended defendant in any criminal matter that involved confidential communications disqualified from prosecuting defendant, but prosecutor not disqualified if represented defendant in perfunctory matter, such as at motion hearing for which did not receive confidential information.
• Meggs In and For Second Judicial Circuit of Florida v. McClure, 538 So.2d 518 (Fla. 1989). Entire prosecutor’s office not disqualified from criminal prosecution relating to death of relative of one prosecutor, who does not participate in prosecution.
• State v. Clausell, 474 So.2d 1189 (Fla. 1989). Entire office of prosecutor not disqualified when he is called as witness in case prosecuted by office. While there exists no “inherent right” to disqualification of entire prosecutor’s office when member is called as witness in case prosecuted by other attorney in same office, motion to disqualify should be granted if actual prejudice is shown.
• Preston v. State, 528 So.2d 896 (Fla. 1988). Prosecutor not disqualified where he had represented defendant on unrelated misdemeanor charge several years before.
• State v. Fitzpatrick, 464 So. 2d 1185 (Fla.1985). Entire States Attorney’s Office was not disqualified by employment of defendant’s prior attorney, since defense attorney did not divulge confidential information and did not participate in prosecution of case.
• Suarez v. State, 481 N.E.2d 1201 (Fla. 1985). Prosecutor prohibited from communicating with defendant known to be represented by attorney without obtaining prior consent of attorney, although defendant initiated contact and was willing to speak with prosecutor.

GEORGIA

Ethics Advisory Opinions

• GA (86-01) Conflict of interest created by dual employment by part-time solicitor.
• GA (86-03) No per se disqualification of county attorneys from representing criminal defendants, unless defendant charged with violation of county ordinance.
• GA (1993-03) Ethical propriety of prosecutor conditioning plea agreement in criminal case on waiver of defense counsel’s fee.

Attorney Disciplinary Opinions

• Matter of Carlson, 268 Ga. 335, 489 S.E.2d 834 (1997).  Attorney, convicted of flagrant failure to pay child support, was held to have committed crime of moral turpitude and thus violated ethical rules.  License suspended for twelve months or until child support arrearage was fulfilled, whichever period was longer.
• Matter of Palmer, 259 Ga. 501, 384 S.E.2d 671 (1989).  Attorney disbarred for taking fee to represent client in court in which not admitted to practice, neglecting matter entrusted to him, and failing to cooperate or respond in investigation of grievance complaint  Attorney disbarred.
• Matter of Atkins, 253 Ga. 319, 320 S.E.2d 146 (1984).  Defense counsel in capital murder case disbarred for failure to familiarize himself with even most basic trial procedures.  Counsel was unaware before commencement of trial that there were two phases to capital case, presented no mitigation witnesses, and made closing argument in punishment phase that consisted of four sentences. 
• Matter of Mitchell, 244 Ga. 766, 262 S.E.2d 89 (1979).  Attorney who not only encouraged witnesses to testify falsely in paternity hearing, but also called them so could testify falsely was disbarred.

Appellate Decisions

• Sealey v. State, 277 Ga. 617, 593 S.E.2d 335 (2004). Entire District Attorney’s Office not disqualified on basis of prior representation of defendant on unrelated charge by one assistant district attorney, where assistant district attorney did not participate in pending trial.
• Brown v. State, 256 Ga. App. 603, 568 S.E.2d 727 (2002). After prosecutor leaves office, he should not accept employment in connection with any matter in which he had substantial responsibility prior to leaving.
• Daker v. State, 257 Ga. App. 280, 570 S.E.2d 704 (2002). Prosecutor’s office not disqualified because defendant filed civil lawsuit against office.
• Todd v. State, 261 Ga. 766, 410 S.E.2d 725 (1991). No conflict of interest when prosecutor employed by District Attorney’s Office during trial became law clerk of judicial circuit while motion for new trial was pending since prosecutor not involved in case while employed in either position.
• Williams v. State, 258 Ga. 305, 369 S.E.2d 232 (Ga. 1988). While permissible for prosecutor to argue to jury that facts lead to conclusion defendant is guilty, it is improper for prosecutor to express personal opinion that defendant is guilty in presence of jury.
• Williams v. State, 258 Ga. 305, 369 S.E.2d 232 (1988). Third trial of defendant ended in hung jury; prosecutor made comment to press that was confident next time he’d get “the right result.” Citing to the Georgia disciplinary rules, Court reiterated that extra-judicial statement with respect to prosecutor's or defense counsel's opinion on guilt or innocence of defendant, evidence, or merits of case is expressly prohibited. Court did note that rules do not prohibit lawyer from replying to publicly made charges of misconduct against him.
• Moon v. State, 258 Ga. 748, 375 S.E.2d 442 (1988). Prosecutor not disqualified where prosecutor might be civilly liable to defendant for violating his rights under Interstate Agreement on Detainers.
• Frazier v. State, 257 Ga. 690, 362 S.E.2d 351 (1987). District Attorney’s Office not disqualified from prosecuting defendant based on fact that two attorneys, who had separately represented defendant and co-defendant for brief period almost one year before defendant’s trial, were hired by district attorney’s office, since attorneys did not participate in any aspect of criminal trial.
• Pope v. State, 256 Ga. 195, 345 S.E.2d 831 (1986), overruled on other grounds, Nash v. State, 271 Ga. 281, 519 S.E.2d 893 (1999). Improper for prosecutor, who had been judicial law clerk during defendant’s trial, to work on direct appeal for state.
• Brown v. State, 177 Ga. App. 284, 339 S.E.2d 332 (1985). No conflict resulted from Special Assistant Attorney General having dual role of giving legal advice to officers or employees of Department of Labor and prosecuting officers or employees who violated law.
• Thompson v. State, 254 Ga. 393, 330 S.E.2d 348 (1985). Actual conflict of interest must be shown to disqualify partner or associate of part-time prosecutor from representation of defendant.
• Davenport v. State, 157 Ga. App. 704, 278 S.E.2d 440 (1981). Where prosecutor cognizant of information and incidents that occurred between husband and wife by virtue of his prior representation of husband in divorce proceedings, prosecutor could not participate in prosecution of wife for committing aggravated assault on her husband.

HAWAII

Ethics Advisory Opinions

Attorney Disciplinary Opinions

• Office of Disciplinary Counsel v. Breiner, 89 Haw. 167, 969 P.2d 1285 (1999).  Six month suspension warranted due to attorney’s behavior in single trial (consisting of argument during opening statements, argumentative and disrespectful cross-examination, and improper comments in presence of jury on two occasions) which resulted in attorney being convicted of four counts of criminal contempt of court by trial judge, prolonged trial itself, and required prosecution and defendant’s subsequent counsel to expend considerable time on appeal addressing effect of attorney behavior before trial court.

Appellate Decisions

IDAHO

Ethics Advisory Opinions

Attorney Disciplinary Opinions

• In re Petition for Review of Hearing Committee of Professional Conduct Board, 140 Idaho 800, 102 P.3d 1119 (2004).  Attorney disciplined for obtaining grand jury transcript without order of court in case he was prosecuting and giving copy of that transcript to third party engaged in civil litigation against same defendant.
• Idaho State Bar v. Malmin, 139 Idaho 304, 78 P.3d 371 (2003).  Attorney disciplined for violation of 8.4(c) (professional misconduct for lawyer to engage in conduct involving dishonesty, fraud, deceit or misrepresentation) due to telling client that papers had been filed when they had not. 
• Idaho State Bar v. Warrick, 137 Idaho 86, 44 P.3d 1141 (2002).  Prosecuting attorney discipline for (1) failing to take timely and reasonable remedial measures when prosecuting witness gave false testimony in criminal matter in violation of Rule 3.3(a)(4); and (2) writing offensive words next to name of inmate he was prosecuting on inmate board at jail in violation of Rule .4.4(a).
• Idaho State Bar v. Gantenbein, 133 Idaho 316, 986 P.2d 339 (1999).  Attorney found to have violated Rule 3.4 and 4.1 as result of redacting information from medical report during discovery in personal injury action.  Attorney suspended for 24 months.
• Runsvold v. Idaho State Bar, 129 Idaho 419, 925 P.2d 1118 (1996).  Court held that pro se lawyer/litigant does represent client when representing himself or herself in matter; thus, Rule 4.2 applies to prevent pro se attorney from directly contacting represented opposing party.  Court also held that no actual harm need be proved for rule violation to have occurred, and that – because rules are designed to prevent harm, not just to sanction attorneys after harm has been done – lawyer can be disciplined whether or not conduct caused actual harm to another.
• Idaho State Bar v. Topp, 129 Idaho 414, 925 P.2d 1113 (1996).  County Attorney publicly reprimanded for making derogatory comments impugning qualifications and integrity of judge.
• Matter of Eliasen, 128 Idaho 393, 913 P.2d 1163 (1996).  Eliasen obtained judgment against patient for dentist; when patient told lawyer unable to satisfy judgment, lawyer wrote letter telling patient that if he did not pay within set period of time, he would report nonpayment to DMV and patient’s driver’s license would be suspended.  Patient contacted lawyer who told him Eliasen was incorrect and patient wrote letter to Eliasen telling him what lawyer told him; Eliasen wrote another letter to patient in which he repeated statement that patient’s driver’s license would be suspended if he did not pay judgment.  Only after second letter did Eliasen contact DMV and find out that his understanding of law was incorrect; he did not contact patient to correct misstatement. Court held that Eliasen knowingly made false statement of law in second letter sent to patient in violation of rules, and public censure was appropriate.

Appellate Decisions

• State v. Robinson, 115 Idaho 800, 770 P.2d 809 (1989). Prosecutor’s initiation of conversation with criminal defendant during trial recess promising rigorous cross-examination was improper communication with party known to be represented by counsel.

ILLINOIS

Ethics Advisory Opinions

• IL (1988-10) Ethical propriety of communications with adverse party that attorney knows to be represented by counsel.
• IL (1989-04) It is professionally improper for newly elected State’s Attorney to continue and expand his predecessor’s direct communication with accused person represented by counsel without consent of lawyer for accused.
• IL (1989-16) It is not professionally improper for attorney to condition DUI plea agreement upon defendant’s dismissal of related civil proceeding to rescind statutory summary suspension.
• IL (91-22) Lawyer who is part time state district attorney may not represent defendants in criminal matters in contiguous county.
• IL (94-16) Lawyer who represents criminal defendants may accept juvenile cases as Special Prosecutor with full disclosure and consent.
• IL (1999-05) Ethical propriety of prosecutor withdrawing from plea agreement for personal reasons.

Attorney Disciplinary Opinions

• Iowa Supreme Court Bd. of Professional Ethics and Conduct v. Tofflemire, 689 N.W.2d 83 (Iowa 2004).  Attorney disciplined for working part time as public defender while working full time state job and using sick leave from that job to make court appearances for public defender.  Also submitted false expense reports to public defender.
• In re Parker, 149 Ill. 2d 222, 595 N.E.2d 549 (1992).  Attorney reinstated to bar after nine year disbarred upon conviction of conspiracy to distribute marijuana. Discusses process for reinstatement to Bar.
• In re Lidov, 129 Ill. 2d 424, 544 N.E.2d 294 (1989).  Attorney suspended for making personal loan to judge seeking election to Supreme Court when attorney had case pending before judge and loan made in cash to judge rather than campaign committee.
• In re Crisel, 101 Ill. 2d 332, 461 N.E.2d 994, 999 (1984).  Crisel, elected prosecutor, who failed at attempt to kill self with gun, filed false police report to cover up bullet holes inside car.  Court found that fabrication of report that attorney was victim of crime showed dishonesty and misrepresentation.  “Respondent's intentional misrepresentations were closely related to, and in complete contravention of, his responsibility as a State's Attorney, to enforce the law. These acts were evidence of his lack of professional and personal honesty, threatening the integrity of the legal profession and the administration of justice.”  Crisel was suspended, but suspension was stayed and he was put on probation due to psychologically impairment.
• In re Lane, 127 Ill. 2d 90, 535 N.E.2d 866 (1982).  Attorney suspended for one year for personally loaning judge $2,500 to assist judge in paying campaign expenses, rather than giving money to campaign fund.
• In re Howard, 69 Ill. 2d 343, 372 N.E.2d 371 (1978).  Attorney disciplined for, inter alia, paying $50 to two different police officers in attempt to influence their testimony, telling office he had things “set” with judge and telling officer that would be spending money with prosecutor’ s office.
• In re Kien, 69 Ill. 2d 355, 372 N.E.2d 376 (1977).  Attorney disciplined for offering bribe to police officer.

Appellate Decisions

• People v. Stafford, 325 Ill. App. 3d 1069, 759 N.E.2d 115, 121 (2001). “This court has held that prosecutorial vindictiveness occurs when reindictment would subject a defendant to increased sanctions or when reindictment takes place after the State has terminated part of an indictment by way of motion for an order of nolle prosequi and the defendant has successfully appealed his conviction. Under such circumstances, reindictment is vindictive because the State is retaliating from the defendant's successful appeal by reindicting. ‘Such conduct by prosecutors creates an enormous potential for discouraging defendants from appealing legitimately for fear of greater or additional offenses arising out of the same cause of action.’ When there is a realistic likelihood of vindictiveness, the State bears the burden of demonstrating objective on-the-record facts which justify a decision to prosecute charges previously nol-prossed.” (citations omitted.)
• People v. Tainter, 294 Ill.App.3d 634, 691 N.E.2d 55 (Ill. App. 1998), vacated on other grounds, 304 Ill.App.3d 847, 710 N.E.2d 158, 237 Ill. Dec. 735 (Ill. App. 1999). Generally not improper to offer defendant reduced sentence to plead guilty but to recommend greater sentence if offer refused, particularly when sentence is within statutory limits.
• People v. Arrington, 297 Ill.App.3d 1, 696 N.E.2d 1229 (1998). No conflict of interest in prosecutor prosecuting defendant for robbing store owned by prosecutor’s cousins where no evidence prosecutor’s relationship with store involved strong emotional ties such that his personal interests influenced discharge of official duties.
• People v. Courtney, 288 Ill. App. 3d 1025, 687 N.E.2d 521 (1997). Where defendant’s former attorney became head of State’s Attorney’s office, special prosecutor should be appointed to prosecute defendant.
• People v. Morley, 287 Ill.App.3d 499, 678 N.E.2d 1235 (1997). Special prosecutor not required where victim worked in prosecutor’s office.
• People v. White, 209 Ill.App.3d 844, 567 N.E.2d 1368, 1386 (1991). Rule prohibiting communication with represented defendant applies to investigators and informants if act as alter ego of prosecutor. “Government investigators and informants act as the alter ego of the prosecutor when they act at the behest of and with specific instructions from that prosecutor to elicit incriminating statements from the defendant. Merely instructing an informant to induce the defendant to talk is not sufficient to constitute the informant the alter ego of the prosecutor. However, where the prosecutor instructs the informant how to elicit incriminating statements by telling him what to say or ask, the informant may be considered the alter ego of the prosecutor. …When not acting as the alter ego of the prosecutor, government investigators may engage in legitimate investigative techniques, including the use of an informant to eavesdrop upon and tape-record a conversation with the defendant.”
• People v. Spreitzer, 123 Ill. 2d 1, 525 N.E.2d 30 (Ill. 1988). Fact that assistant public defender was formerly employed as assistant state’s attorney when decision was made to charge defendant was not conflict of interest so as to prohibit appointment of different assistant public defender to defendant’s case.
• People ex rel. York v. Downen, 119 Ill.App.3d 29, 456 N.E.2d 286 (1983). Evidence that state’s attorney talked about absentee ballots with county clerk only showed fulfillment of duty to provide legal advice to county officials, and did not establish conflict of interest when state’s attorney convened grand jury to investigate alleged general election irregularities that possibly involved county clerk.
• People v. Hall, 58 Ill. App. 3d 487, 374 N.E.2d 822 (1978). Improper to appoint former state’s attorney, who had filed pretrial motion on behalf of State in defendant’s case, as defendant’s attorney.
• People v. Rymer, 32 Ill. App. 3d 431, 336 N.E.2d 203 (1975). Prosecutor could not participate in case where defendant visited attorney, who was part-time prosecutor, and discussed criminal case.

INDIANA

Ethics Advisory Opinions

• IN (1963-11, 1964-01) Prosecuting attorney cannot represent private party in divorce case if state imposes statutory obligations upon prosecuting attorney in such cases.
• IN (1963-12, 1964-02) Deputy prosecuting attorney who prosecutes in City Court cannot appear as defense counsel in criminal cases in Circuit Court.
• IN (1965-5, 6) Prosecutor and defense attorney must refrain from public statements which tend to arouse public opinion about merits of pending litigation; unethical to make personal attacks against opposing counsel or judge.
• IN (1972-02, 1973-03) Prosecutor cannot represent criminal defendant accused of crime in any matter which involves same transaction or occurrence.
• IN (1977-01) Part time deputy prosecutor cannot represent criminal defendants in private practice.
• IN (1979-05) Conflict exists where plaintiff’s counsel if prosecutor and is suing city in which he prosecutes in civil action or action involving police officer.
• IN (1979-06) Conflict exists where prosecutor represents plaintiffs in civil action against defendant who is being prosecuted in criminal action arising out of same set of facts.
• IN (1980-06) Attorney must comply with Disciplinary Rules before making statements to media.
• IN (1981-03) No conflict of interest when prosecuting attorney’s office represents petitioner in matter under Title IV-D of Social Security Act, who is also being criminally prosecuted by same office.
• IN (1981-07) Violation where part time prosecuting attorney representing civil client in matter involving collection of support.
• IN (1981-08) No violation where part time prosecuting attorney represents county welfare department in private practice.
• IN (1982-02) No ethical violations when prosecutor and criminal defense attorney engage in non-legal business relationships.
• IN (1983-02) District Attorney whose spouse is judge is not disqualified as long as they don’t take cases in spouse’s court.
• IN (1985-05) Conflict of interest exists when firm which has among its members deputy prosecuting attorney accepts representation of juvenile and parents against corporate defendant in civil cause of action arising out of set of circumstances which could result in criminal charges being brought against corporate defendant by office of prosecuting attorney.
• IN (1988-1) Partner in firm may not take position with County Prosecutor’s Office where father and partner is also part time judge of court in same county.

Attorney Disciplinary Opinions

• In re Anonymous, 819 N.E.2d 376 (Ind. 2004).  Defense attorney privately reprimanded for obtaining co-defendant’s signature on affidavit supporting severance motion without going through co-defendant’s attorney.
• In re Miller, 677 N.E.2d 505 (Ind. 1997).  Prosecutor publicly reprimanded for unlawfully using prosecutorial authority to assist private litigant to collect civil judgment and failing to comply with discovery orders.

Appellate Decisions

• Page v. State, 689 N.E.2d 707 (Ind. 1997). Special prosecutor not required where defendant’s attorney ended representation after six weeks and joined prosecuting attorney’s office, since prior attorney did not discuss defendant’s case with prosecutor.
• Reynolds v. State, 625 N.E.2d 1319 (Ind. App. 1993). Filing of additional charges after corroborating information is gained does not establish vindictiveness.
• Kindred v. State, 521 N.E.2d 320 (Ind. 1988). Defendant not entitled to appointment of special prosecutor when defendant filed civil action against prosecutor one day before criminal charges were filed.
• Vaxter v. State, 508 N.E.2d 809 (Ind. 1987). Where additional charges are filed prior to trial, there is no presumption of vindictiveness.
• Sears v. State, 457 N.E.2d 192 (Ind. 1983). Special prosecutor properly appointed for habitual offender phase of proceeding against defendant, where prosecutor had represented defendant in one or more cases which were listed in habitual offender charge.
• State v. Tippecanoe County Court, 432 N.E.2d 1377 (Ind. 1982). Prosecutor disqualified where habitual offender charge was based upon prior cases in which prosecutor represented defendant.
• Cherry v. State, 414 N.E.2d 301 (Ind. 1981). Appearance of prosecutorial vindictiveness when prosecutor files more numerous and more severe charges against defendant after successful exercise of right to appeal.
• State ex rel. Goldsmith v. Superior Court of Hancock County, 386 N.E.2d 942 (Ind. 1979). Entire prosecutor’s office not disqualified when assistant prosecutor or other staff member becomes witness in case prosecuted by office; however, if elected prosecutor is witness, entire staff must be disqualified to maintain integrity of process of criminal justice. Court held that when assistant prosecutor moves for disqualification and appointment of special prosecutor, Court must disqualify entire office and appoint special prosecutor. In its analysis under the Disciplinary Rules, the Court distinguished between relationship between prosecuting attorney and his sole client, the citizens of circuit in which he serves, and lawyer and ordinary attorney-client relationship.
• State ex rel. Latham v. Spencer Circuit Court, 194 N.E.2d 606 (Ind. 1963). Special prosecutor should be appointed when regular prosecuting attorney has hostility and antagonism against defendant due to prior matters involving defendant.

IOWA

Ethics Advisory Opinions

Attorney Disciplinary Opinions

• Iowa Supreme Court Bd. of Professional Ethics and Conduct v. Tofflemire, 689 N.W.2d 83 (Iowa 2004).  Attorney disciplined for working part-time as public defender while working full-time state job and using sick leave from full-time job to make court appearances for public defender.  Also submitted false expense reports to public defender.
• Committee of Professional Ethics and Conduct of Iowa State Bar Assn. v. Ramey, 512 N.W.2d 569 (Iowa 1994).  Experienced prosecutor, when confronted with chain of custody problem, falsely stated that he had personally examined money in evidence and that serial numbers matched up (they did not) thereby violating ethical rule prohibiting conduct involving misrepresentation.  In separate case, prosecutor failed to disclose impeachment material in violation of ethical duty to disclose. Ramey’s license was indefinitely suspended.
• Committee on Professional Ethics and Conduct of the Iowa State Bar Ass'n v. Mollman, 488 N.W.2d 168 (Iowa 1992).  Attorney received 30-day suspension for misconduct in wearing concealed microphone to record conversation with friend and former client and using fraud and deceit for purpose of luring friend into trap set by federal law enforcement officials in order to secure leniency in attorney's own prosecution for drug possession.

Appellate Decisions

• Wells Dairy, Inc. v. American Indus. Refrigeration, Inc., 690 N.W.2d 38 (Iowa 2004). Overarching inquiry in determining whether document was prepared in anticipation of litigation is whether, in light of nature of document and factual situation in case, document can fairly be said to have been prepared or obtained because of prospect of litigation.
• Committee on Professional Ethics and Conduct of Iowa State Bar Assn. v. Michelson, 345 N.W.2d 112 (Iowa 1984).  No presumption of vindictiveness from prosecutor’s increase of charges after defendant’s refusal to plead guilty.
• Committee on Professional Ethics and Conduct of Iowa State Bar Assn. v. Michelson, 345 N.W.2d 112 (Iowa 1984).  There is no presumption of vindictiveness by increasing charges after refusal to plead guilty.

KANSAS

Ethics Advisory Opinions

Attorney Disciplinary Opinions

• In re Jordan, 278 Kan, 254, 91 P.3d 1168 (2004).  Prosecutor’s false statement to court regarding her participation in securing warrant for arrest of defense witness resulted in public censure.  Same prosecutor failed to disclose evidence of victim’s cocaine usage while arguing that defendant secretly caused her to ingest cocaine at time of commission of crime.
• Matter of Sutton, 265 Kan. 251, 959 P.2d 904 (1998).  Assistant county attorney issued public censure for (1) committing traffic violations and getting into a verbal and physical confrontation with highway worker which led to tort suit against him, and (2) failure to reimburse county for seminar expenses it had paid when he requested and received funds for same expenses from National Association of Prosecutor Coordinators.
• Matter of Carpenter, 248 Kan. 619, 808 P.2d 1341 (1991).  Assistant District Attorney publicly censured for stating in her opening statement that victim of sexual assault had contracted gonorrhea from defendant and asking questions to establish that fact in direct examination of three witnesses and cross examination of defendant when District Attorney’s Office had credible evidence to establish that victim was not so infected.
• Matter of Price, 238 Kan. 426, 709 P.2d 986 (1985).  County Attorney suspended for repeated failure to abide by discovery orders issued by court and repeated misrepresentations to judge and defense counsel in one case and wearing of World War II German officer's uniform with Nazi insignia while in court prosecuting another case.  In second matter, Respondent failed to represent State’s interest as appellee in appeal from conviction of forgery due to his failure to file brief and, on day before oral argument was scheduled in Court of Appeals, calling defense counsel and offering to confess error, resulting in reversal and order for new trial.

Appellate Decisions

• In re Jordan, 278 Kan. 254, 91 P.3d 1168 (2004).  In one case, prosecutor made false statements to court regarding her knowledge of investigation of or arrest warrant for defense witness in midst of trial; trial resulted in mistrial and charges later dismissed.  In second case, same prosecutor failed to disclose evidence of victims’ cocaine usage while arguing that defendant secretly caused her to ingest cocaine at time of commission of crime and asked questions had been instructed not to ask witness; second trial ended in mistrial and charges later dismissed.  Court found that prosecutor had made misrepresentation of fact in violation of Rule 3.3, and had failed to disclose material that should have been disclosed under Rules 3.4 and 3.8, with both acts constituting conduct prejudicial to administration of justice under Rule 8.4.  Public censure issued.
• State v. Hazley, 28 Kan. App. 2d 664, 19 P.3d 800 (2001). Citing to rules of professional conduct and ABA standards, Court found reversible error in prosecutor’s closing argument that included comments that people lie when convenient, references to sole defense witness’ post-Miranda silence, and misstatement of defense counsel's argument.
• State v. Pabst, 268 Kan. 501, 510-511, 996 P.2d 321 (2000). Prosecutor is servant of the law and representative of people of Kansas. Prosecutor has special obligation to avoid improper personal insinuations during closing argument.
• State v. Pabst, 268 Kan. 501, 510-511, 996 P.2d 321 (2000). Kansas Rules of Professional Conduct and American Bar Association Standards of Criminal Justice clearly state improper for lawyer to comment on witness' credibility, and is responsibility of both prosecutor and trial judge to ensure that closing argument is kept within proper bounds. “A prosecutor is a servant of the law and a representative of the people of Kansas. We are unable to locate an excuse for a prosecutor's failure to understand the remarkable responsibility he or she undertakes when rising in a courtroom to announce an appearance for the State of Kansas.... The State's characterization of the prosecutor's statement that a defendant is lying, as a comment on the evidence, misses the mark. The point of not allowing a prosecutor to comment on the credibility of a witness is that expressions of personal opinion by the prosecutor are a form of unsworn, unchecked testimony, not commentary on the evidence of the case. ... Here [the prosecutor] introduced into the case his personal opinion of [the defendant's] credibility. He ignored his special obligation as a prosecutor to avoid improper personal insinuations. Because he represented the State of Kansas the jury might have been misled into thinking his personal opinions were validated by the weight of the State of Kansas. Such prosecutorial vouching places the prestige of the State behind the prosecutor's personal assurances."

KENTUCKY

Ethics Advisory Opinions

• KY (1967- E 31) City prosecutor charged with prosecution of criminal offenses may not represent defendants in criminal cases.
• KY (1971-E 52) Attorney, during or after conclusion of litigation, may not voluntarily submit information relating to litigation concerning attorneys involved, legal position taken by attorneys in case, issues of case and results to news media.
• KY (1973-E 68) Attorney may be present to render legal advice to his client at press conference called by client.
• KY (1974-E 66) County Attorney may legally engage in practice of Workmen’s Compensation and related cases.
• KY (1974-E 100) County attorney may not prepare and publish in own newspaper periodic reports of actions taken by him as county attorney.
• KY (1975-E 113) Unethical for Assistant County Attorney, who is prosecutor, to be appointed Deputy Sheriff in order to make arrest rather than taking out warrants.
• KY (1975-E 115) County Attorney may conduct both county business and private practice out of same office located in county courthouse.
• KY (1975-E 124) Commonwealth’s attorney may not prosecute defendant on retrial of criminal charge, when defendant’s lawyer at first trial has joined office of Commonwealth Attorney.
• KY (1975-E 128) County attorney may not share office with judge of police court.
• KY (1976- E 153) Prosecuting attorney who has represented party in divorce action may not subsequently participate in prosecution of adverse party under KRS 530.050 for non-support of children of marriage.
• KY (1976-E 157) Assistant Commonwealth’s Attorney may in some circumstances after he has left office accept fee from victim’s family to continue prosecution.
• KY (1977-E 160) Assistant county attorney may not defend criminal cases in courts of county in which he is appointed to serve. Attorney’s partners may not defend criminal cases either.
• KY (1977-E 214) Prosecutor may not serve as prosecutor and trial commissioner simultaneously.
• KY (1979-E 215) Part-time assistant county attorney may not represent defendant in civil action to collect delinquent support payments.
• KY (1979-E 220) Prosecutor may not secure written affidavits from jurors in criminal case regarding their feelings as to accused’s penalty with specific intent to use information at sentencing phase of case.
• KY (1982-E 257) Attorney for Commonwealth may, in some circumstances, prosecute criminal action against defendant that was party to civil action in which Attorney for Commonwealth represented one party at time criminal complaint was filed.  
• KY (1984-E 279) Attorney may not secretly record conversations with client, attorney, judge, and public, including public officials, where said persons are not witnesses in criminal proceeding in which attorney is employed as defense counsel.
• KY (1984-E 294) Proper for Commonwealth Attorney to represent party in contested custody matter where no criminal warrants have been issued.
• KY (1985-291) Assistant county attorney, partner or associate may not represent person in civil matter who is simultaneously being prosecuted in same county for an unrelated criminal offense.
• KY (1987-E 322) Attorney who represents criminal defendants may not share office with full or part time prosecutor.
• KY (1992- E 350) Prosecutor, partners and associates should not try defendants with whom prosecutor is embroiled in civil litigation.
• KY (1995-E 386) Spouse of prosecutor may practice criminal law in same jurisdiction as spouse-prosecutor as long as spouses do not appear in same cases and client consents after consultation.
• KY (2000-E412) Partner of prosecutor may not represent criminal defendants in same county in which prosecutor acts as prosecutor.
• KY (2000-E 415) Part-time prosecutor may not represent respondent in matter involving civil domestic violence order.

Attorney Disciplinary Opinions

• Kentucky Bar Ass'n v. Marcum, 830 S.W.2d 389 (Ky. 1992).  Prosecutors publicly reprimanded for accepting private employment in matters they had involvement in as public employees.
• Kentucky Bar Ass'n v. Lovelace, 778 S.W.2d 651, 653-654 (Ky. 1989).  Attorney suspended for accepting private employment in matter in which had responsibility to prosecute and attempting to use promise of probation in criminal case as leverage to obtain personal contribution from defendant in civil case.  Court also took opportunity to address propriety of prosecutor’s engagement in private practice.  “By statute, county attorneys and a majority of Commonwealth Attorneys are entitled to maintain a private civil practice.  While some may believe such is unwise or contrary to the best interest of the Commonwealth, nothing in our law or Code of Professional Responsibility prohibits such practice.  It is obvious, however, that this creates a great potential for conflict of interest as many criminal acts are subject also to redress in civil actions.  This is particularly true in rural areas which are served by a small number of lawyers engaged in the practice of law and in which the public prosecutor is often one of the more prominent local practitioners.  When an attorney declares his intention to seek elective office as a Commonwealth Attorney or a county attorney, it should be with the certain knowledge that his civil practice will be severely restricted upon assuming the office and that the public office he holds will take precedence over his private practice.  A prosecutor must decline employment in any civil action when there is any reasonable probability that a criminal prosecution might arise from the circumstances of the case.  If, after accepting employment in a civil matter, a criminal prosecution arises from the circumstances of the case the prosecuting attorney must withdraw from the civil proceeding and disqualify himself from handling the prosecution.  While the views expressed above do not represent a change in the law, we note that in the past such rules have frequently been observed with a great degree of flexibility. In the future, however, violations of the rules reiterated herein will not be tolerated.”
• In re Kenton County Bar Assn., 314 Ky. 664, 236 S.W.2d 906 (1951).  It is improper for partner of assistant prosecutor to defend criminal case in same judicial circuit.

Appellate Decisions

• Miller v. Com., No. 2002-SC-0527-MR, 2005 WL 119745 (Ky. 2005). While improper, prosecutor’s reference to defendant as “cancer in community” did not prevent defendant from receiving fair trial.
• Hillard v. Com., No. 2002-SC-0702-MR, 2005 WL 384778 (Ky. 2005). Prosecutor’s use of subpoenas to obtain ex parte interviews of witnesses prior to trial was improper but did not require dismissal of indictment or retrial; Court noted that appropriate cure for such misconduct is to prohibit prosecutor from using any information obtained solely from improper interview. Court noted that perjury warnings are not per se improper, but improper only when prosecutor's perjury warning interfered substantially with witness's free and unhampered choice to testify.
• Thomas v. Com., Not Reported in S.W.3d, 2004 WL 2913237 (Ky. 2004), rehearing granted (March 17, 2005). Though unprofessional, prosecutor’s actions of laughing and making facial gestures during direct examination of defendant did not deny defendant fair trial.
• Thompson v. Com., 147 S.W.3d 22 (Ky. 2004). Defendant asserted that, during penalty phase closing argument, Prosecutor made statements implying he was acting on behalf of victim rather than Commonwealth of Kentucky. While finding prosecutor’s comments to be “perhaps approaching the line of impropriety,” Court held fell within latitude afforded counsel in closing arguments. Other comments made by prosecutor, including use of terms “mean,” “evil,” and “vile,” not constitute prosecutorial misconduct.
• Solomon v. Com., No. 2001-CA-001260-MR, 2004 WL 1416467 (Ky. App. 2004). Prosecutor’s statements during closing argument in which threatened not to prosecute similar cases if jury did not return guilty verdict were improper, but did not prevent defendant from receiving fair trial.
• Solomon v. Com., No. 2001-CA-001260-MR, 2004 WL 1416467 (Ky. App. 2004). Even though prosecutor misrepresented facts in closing argument, defendant was not prevented from receiving fair trial.
• Soto v. Com., 139 S.W.3d 827 (Ky. 2004). During penalty phase closing argument, it was not improper for prosecutor to thank jury on behalf of victims’ family, state, police, and community. Various other instances of alleged misconduct in closing of penalty phase were not misconduct.
• Blair v. Com., 144 S.W.3d 801 (Ky. 2004). New trial granted where prosecutor used closing argument to inappropriately inject extra-judicial facts into record.
• Simpson v. Com., No. 2002-CA-000119-MR, 2004 WL 360980 (Ky. App. 2004). Prosecutor’s statements during closing argument that defendant presented no alibi witnesses, that nobody refuted testimony of prosecution witnesses who identified defendant as guilty party, and that only evidence offered in case supported prosecution’s case not deprive defendant of fair trial because all statements allowed under state law.
• Rudolph v. Com., No. 2003-SC-0050-MR, 2004 WL 536025 (Ky. 2004). Prosecutor’s comments referencing defendant’s failure to introduce certain evidence was fair comment on evidence and did not impermissibly shift burden.
• Caldwell v. Com., 133 S.W.3d 445 (Ky. 2004). Prosecutor’s comment that defendant had long time to come up with story to explain evidence not improperly comment on defendant’s right to remain silent.
• Ragland v. Com., No. 2002-SC-0388-MR, 2003-SC-0084-TG, 2004 WL 2623926 (Ky. S. Ct. 2004). New trial ordered after prosecutor improperly commented on defendant’s failure to testify in violation of defendant’s Fifth Amendment rights.
• Meade v. Com., No. 2003-CA-001870-MR, 2004 WL 3016296 (Ky. App. 2004). No prosecutorial misconduct was found when prosecutor used closing arguments to strongly hint defendant was lying, since comments were consistent with evidence offered by prosecution.
• Hall v. Com., No. 2001-SC-0814-MR, 2003 WL 21254856 (Ky. 2003). Prosecutor’s statement during voir dire that he was “responsible for representing crime victims,” specifically naming defendant’s ex-wife and son, found by Court to not necessarily mean that prosecutor has abdicated responsibility to represent all constituents within Commonwealth, including defendant. And, because Court held that statement alone could not be considered so inflammatory as to cause jury to base decision on guilt or innocence or punishment just on who is victim.
• Miller v. Com., No. 2001-SC-1010-MR, 2003 WL 22415623 (Ky. 2003). Prosecutor’s remarks that defendant was “cutting his losses” by asking jury to only find manslaughter was permissible, since it only amounted to prosecution commentary on defense strategy.
• Edmondson v. Com., No. 2001-SC-0253-MR, 2002 WL 32065611 (Ky. 2002). Error for prosecutor, during cross-examination of defendant, to inject extra-judicial scientific evidence into record with no intention of later proving it, but error not require reversal.
• Barnes v. Com., 91 S.W.3d 564 (Ky. 2002). Prosecutor stated during closing argument that acquitting defendant would be crime worse than murder. New trial granted on appeal because only purpose of statement was to inflame jury. Appellate court also cited to numerous other instances of prosecutorial misconduct arising from prosecutor’s behavior in trial.
• Edmondson v. Com., No. 2001-SC-0253-MR, 2002 WL 32065611 (Ky. 2002). Prosecutor’s reference to refusal of defense witness to take polygraph during closing argument constituted reversible error, particularly since trial judge had previously excluded any evidence of failure to take polygraph.
• Perdue v. Com., 916 S.W.2d 148 (Ky. 1995). Prosecutor’s penalty phase comment about time and trouble defendant’s failure to plead guilty had caused held to be improper.
• Perdue v. Com., 916 S.W.2d 148 (Ky. 1995). Although prosecutor’s incorrect quotation of defendant from tape played for jury was error, harmless because jury could have reviewed tape for itself.
• Perdue v. Com., 916 S.W.2d 148 (Ky. 1995). Prosecutorial misconduct for prosecutor, during penalty phase, to ask when defendant got into murder for hire business and make other references to murder for hire when such not supported by any evidence and served only to inflame and prejudice jury; reversal required for this and other errors.
• Cash v. Com., 892 S.W.2d 292, 294 (Ky. 1995). Learning that potential witnesses had lied to grand jury, prosecutor told both witnesses that would not prosecute for perjury if they testified truthfully at trial. Prosecutor kept promise regarding one witness; refused to call other witness and, in fact, threatened to prosecute for perjury if witness testified for defense. Court held prosecutor’s failure to adhere to promise made to witness constituted level of prosecutorial misconduct that "breeds contempt for integrity and good faith" and "destroys the confidence of citizens in the operation of their government and invites them to disregard their obligations."
• Jacobs v. Com., 870 S.W.2d 412 (Ky. 1994). Improper for prosecutor to ask defense’s qualified expert witness in psychiatry if had worked as professional belly dancer because only served to undermine her credibility and was totally irrelevant.
• Mack v. Com., 860 S.W.2d 275 (Ky. 1993). Prosecutor’s comments during closing argument that intimated there was overwhelming amount of evidence that was kept out because of legal formalities were improper and warranted granting of new trial on appeal.
• Clay v. Com., 867 S.W.2d 200 (Ky. App. 1993). Prosecutor’s question to defendant as to why not make statement was impermissible comment on defendant’s right to remain silent.
• Dean v. Com., 844 S.W.2d 417 (Ky. 1992). Given totality of circumstances and overwhelming amount of evidence against defendants, it was not improper for prosecutor to refer to defendants as “crazed animals,” nor for prosecutor to state that State had done its job, and that it was time for jury to do theirs.
• Morris v. Com., 766 S.W.2d 58 (Ky. 1989). New trial granted because of prosecutor improper emphasis of heroic and leadership qualities of victim and victim’s family.
• Sanborn v. Com., 754 S.W.2d 534 (Ky. 1988). Prosecutor engaged in pattern of conduct ridiculing and intimidating defense counsel (made demeaning or derogatory remarks) that Court held to be “grossly improper.” New trial required because of these remarks and other improper acts of prosecutor, including prosecutor’s destruction of recordings of witness’ statements; references in closing argument to defendant as "black dog of a night," “monster," "coyote that roamed the road at night hunting women to use this knife on," and "wolf;" and misstating law concerning jury’s duty during closing argument.
• Wager v. Com., 751 S.W.2d 28 (Ky. 1988). New trial granted in part due to improper demonstration conducted by prosecutor during closing argument.
• Sanborn v. Com., 754 S.W.2d 534 (Ky. 1988). Prosecutor engaged in pattern of conduct ridiculing and intimidating defense counsel (made demeaning or derogatory remarks) that Court held to be “grossly improper.” New trial required because of these remarks and other improper acts of prosecutor, including prosecutor’s destruction of recordings of witness’ statements; references in closing argument to defendant as "black dog of a night," “monster," "coyote that roamed the road at night hunting women to use this knife on," and "wolf;" and misstating law concerning jury’s duty during closing argument.
• Sanborn v. Com., 754 S.W.2d 534 (Ky. 1988). Prosecutor engaged in pattern of conduct ridiculing and intimidating defense counsel (made demeaning or derogatory remarks) that Court held to be “grossly improper.” New trial required because of these remarks and other improper acts of prosecutor, including prosecutor’s destruction of recordings of witness’ statements; references in closing argument to defendant as "black dog of a night," “monster," "coyote that roamed the road at night hunting women to use this knife on," and "wolf;" and misstating law concerning jury’s duty during closing argument.
• Ice v. Com., 667 S.W.2d 671 (Ky. 1984). New trial granted for number of reasons including following improper statements during closing arguments: prosecutor’s continuous misstatement of defense witness’s testimony; comment about possibility of appeal; comment that jury merely recommends death penalty, not impose it; and suggestion that, if not convicted, defendant would kill again.
• Ice v. Com., 667 S.W.2d 671 (Ky. 1984). Prosecutor was accused of prosecutorial misconduct on numerous grounds, many of which Court found to be justified. In fact, Court stated that prosecutor’s direct and cross-examination of witnesses “reads like a bad television scenario.” One example given was prosecutor’s cross-examination of defense psychiatrist during which prosecutor repeatedly and consistently misstated doctor's testimony. Prosecutor also improperly, during closing argument, commented on consequences of particular verdict. Case reversed due to these and other errors.
• Summitt v. Mudd, 679 S.W.2d 225 (Ky. 1984). Mere possibility of appearance of impropriety is not sufficient to disqualify entire staff of prosecutor’s office from further prosecution of case.
• In re Kenton County Bar Assn., 236 S.W.2d 906 (Ky. 1951). Partner of assistant prosecutor cannot defend criminal case in same judicial circuit.

LOUISIANA

Ethics Advisory Opinions

Attorney Disciplinary Opinions

• In re Jordan, Opinion No. 2004-B-2397 (La. S. Ct. June 29, 2005).  Eyewitness to murder gave three statements to police – on night of murder, “visibly shaken” witness said not get good look and probably could not identify perpetrators; three days after murder, witness described clothing, height and hair of the shooter after saying not have contacts in or glasses on and not sure if imagining some of shooter’s appearance; and three weeks after the murder, witness identified someone from photographic lineup.  During trial preparation, prosecutor interviewed eyewitness, who told him she was nearsighted and only needed glasses or contacts for nighttime driving and not to see at close distances.  Prosecutor decided not need to tell defense either that eyewitness not wearing glasses or contacts on night of crime or about second statement given to police three days after murder because not exculpatory.   Supreme Court found prosecutor violated Rule 3.8(d) by failing to disclose second statement to defense.  Prosecutor suspended from practice of law for three months, but suspension was deferred. 
• In re Toups, 773 So. 2d 709 (La. 2000). Prosecutor disciplined for not withdrawing from representation of woman in divorce case when she filed criminal charges against her husband.  Prosecutor’s conduct also included failure to report misconduct of another ADA who attempted to have husband’s case continued indefinitely while representing both husband and State.

Appellate Decisions

• State v. Ennis, 877 So. 2d 300 (La. App. 2004). Prosecutor’s office not disqualified on basis of separate forfeiture proceeding arising from criminal case.
• State v. Cooper, 774 So. 2d 1040 (La. App. 2000). Fact that elected prosecutor was related to crime victim not enough to require recusal of entire prosecutor’s office where defendant not produce any evidence tending to show personal interest on behalf of entire prosecutor's office, which would threaten fair and impartial administration of justice.
• State v. Guidroz, 721 So. 2d 480 (La. App. 1998). Prosecutor in aggravated incest prosecution did not have to recuse himself on ground of personal interest where he knew victim’s grandparents.
• State v. Adkins, 702 So. 2d 1115 (La. App. 1997). Prosecutor disqualified from representing crime victim’s relative seeking recusal of Attorney General in criminal matter since prosecutor’s first and principal client is State.
• State v. Gatch, 669 So. 2d 676 (La. App. 1996). Prosecutor should be recused when he has personal interest in grand jury proceeding.
• State v. Stewart, 656 So. 2d 677, 680-681 (La. App. 1995). “Defendant has the burden of proving, by a preponderance of the evidence, the affirmative defense of prosecutorial vindictiveness. In that regard, the court will examine the state's actions in the context of the entire proceedings. The events in the case will create a presumption of vindictiveness if, to a reasonable mind, the filing of the habitual offender bill can be explained only by a desire to deter or punish the exercise of legal rights. But where the government's conduct is equally attributable to legitimate reasons, a defendant must prove actual vindictiveness for a presumption will not apply. A mere opportunity for vindictiveness does not suffice…. More importantly, a district attorney has great discretionary power to file an habitual offender bill under [state law], just as he has the initial unlimited power to prosecute "whom, when, and how" he chooses.” (citations omitted.)
• State v. Bourque, 622 So.2d 198 (La. 1993). Defendant not entitled to recusal of prosecutor’s office because investigator in office was brother-in-law of one victim and uncle of other victim.
• State v. Probst, 623 So. 2d 79 (La. App. 1993). Prosecutor’s statements to jury venire two days prior to defendant’s trial that they were dismissed for day and needed to return two days later to determine guilt of defendant :violated applicable ethical guidelines, and [the Court did] not approve of [prosecutor’s] conduct. Court concluded that jury not tainted so new trial motion properly denied.
• State v. Washington, 626 So. 2d 841 (La. App. 1993). Before defendant or defense counsel were in the courtroom, clerk of court and elected prosecutor spoke to jury; comments included clerk’s comments that often defendants feel pressure when juries are summoned and they plead guilty so jury gets to go home and prosecutor’s comments related to importance of jury service. Citing to Rule 3.5(b) of Louisiana Rules of Professional Conduct, Court held that was unprofessional conduct for prosecutor to make any ex parte remarks in presence of jury.
• State v. Bender, 598 So.2d 629 (La. App. 1992). Prosecutor not disqualified based on personal friendship with victim, who was deputy sheriff, where contacts with victim were generally professional.
• State v. Allen, 539 So.2d 1232 (La. 1989). Where prosecutor previously represented defendant in bankruptcy proceeding, prosecutor disqualified from involvement in prosecution of defendant for arson, where alleged motive was financial distress.
• Parkerson v. Norris, 529 So.2d 1392 (La. App. 1988). Prosecutor recused from grand jury investigation where was victim of alleged criminal activity subject to investigation by that grand jury.
• State v. Bates, 508 So.2d 1346 (La. 1987). Improper for prosecutor to contact potential jurors by letter and questionnaire prior to trial.
• State v. Edwards, 420 So.2d 663 (La. 1982). Where assistant prosecutor had previously represented defendant, other prosecutors in office could prosecute defendant provided had no personal interest in case.
• State v. Thomason, 353 So.2d 235 (La. 1977). Prosecutor, who served as statutory counsel for school board and was consulted regarding matters concerning defendant’s continued employment with school board but not related to present criminal prosecution of defendant for theft of school property, did not have personal interest in trial requiring disqualification.
• State v. Bell, 346 So.2d 1090 (La. 1977). Mere fact that assistant district attorney once represented defendant not require disqualification of entire office where assistant was not called upon to use confidential knowledge gained through prior representation.
• State v. Snyder, 237 So.2d 392 (La. 1970). Personal animosity prosecutor harbored toward realtor during prior mayoral campaign, prosecutor should not participate in perjury case against realtor.

MAINE

Ethics Advisory Opinions

• ME (1979-06) Entire District Attorney’s office should be recused when either District Attorney or any of his assistants is likely to be called as witness.
• ME (1980-07) Conflict exists where District Attorney serves as counsel for defendants, County Sheriff and County Commissioner, in civil action brought by prisoner in County Jail.
• ME (1983-39) When one member of firm has been offered position as district attorney and accepted, other members of firm can no longer represent criminal defendants in that district.
• ME (1983-36) District Attorney forbidden from prosecuting case against person who is represented by lawyer whose partner is spouse of District Attorney.
• ME (1984-49) Improper for district attorney to represent town or taxpayer in abatement before county commissioners.
• ME (1985-65) Attorney with in-law relationship with district attorney may represent defendants whether or not in-law is involved in case, provided disclosure requirements are met.
• ME (1986-70) Criminal defense counsel whose spouse is member of District Attorney’s Office can defend matters handled by District Attorney’s Office, with proper disclosure and consent by client.

Attorney Disciplinary Opinions

Appellate Decisions

• State v. Eaton, 462 A.2d 502 (Maine 1983). Greater charges may be dismissed if it appears these charges were filed to harass defendant. Court always has power to dismiss indictment duplicating Class C or higher complaint previously dismissed by Court, if clearly appears that “whole course of action” by prosecution amounts to harassment of defendant. “Carefully considered” exercise of that power by Court can afford appropriate protection against prosecutorial abuse, without creating hard-and-fast rule automatically barring or limiting later prosecution.

MARYLAND

Ethics Advisory Opinions

Attorney Disciplinary Opinions

• Attorney Grievance Committee of Maryland v. Gansler, 377 Md. 656, 835 A.2d 548 (2003). Prosecutor publicly reprimanded for statements to news media about, inter alia, defendant’s confession and decision to offer plea bargain to defendant after reversal of conviction.  Court held that, in future, phrase "information in a public record" as used in Rule 3.6(c)(2) would cover only public government records, i.e., records and papers on file with government entity to which ordinary citizen would have lawful access.  Court reviewed role of prosecutor.

  Prosecutors are held to even higher standards of conduct than other attorneys due to their unique role as both advocate and minister of justice.  The special duty of the prosecutor to seek justice is said to exist because the State's Attorney has broad discretion in determining whether to initiate criminal proceedings.  The office of prosecutor is therefore "not purely ministerial, but involves the exercise of learning and discretion," and he or she "must exercise a sound discretion to distinguish between the guilty and the innocent."  The responsibilities of the prosecutor encompass more than advocacy.  The prosecutor's duty is not merely to convict, but to seek justice.  "His obligation is to protect not only the public interest but the innocent as well and to safeguard the rights guaranteed to all persons, including those who may be guilty."

  (citations omitted).  Id., 835 A.2d at 571-572.

Appellate Decisions

• Newman v. State, 384 Md. 285, 863 A.2d 321 (2004). Criminal defendant could invoke attorney-client privilege in criminal case, even though her attorney in domestic action had disclosed under Rule 1.6 defendant’s plot to kill her husband to judge in domestic case.
• Gatewood v. State, 158 Md. App. 458, 857 A.2d 590 (2004). Prosecutor not disqualified even though he had represented defendant twice while employed as assistant public defender, since prior representation did not involve matters substantially related to present charge.
• Lynkins v. State, 288 Md. 71, 415 A.2d 1113 (1980). Prosecutor who had previously prepared separation agreement for defendant should not participate in prosecution of defendant.
• Sinclair v. State, 278 Md. 243, 363 A.2d 468 (1976). If prosecutor has knowledge of pertinent facts or has any pecuniary interest in civil matter which might impair his obligation in criminal matter, he is disqualified from participating in criminal matter.

MASSACHUSETTS

Ethics Advisory Opinions

• MA (1976-26) Attorney associated with son in practice should not handle any criminal cases being prosecuted by district attorney's office in which his son serves as assistant district attorney.
• MA (1978-01) Town prosecutor, nor any member of firm, may represent criminal defendant in trial or appeal of case in which town has an interest or case in which he, or any police or other officer of town is involved.
• MA (1979-04) No violation if member of District Attorney’s Office prosecutes former client of fellow district attorney, as long as client confidentiality is maintained.
• MA (1980-01) Law student may represent indigent defendant against prosecution by Commonwealth in one county while simultaneously prosecuting criminal case on behalf of Commonwealth in another county.
• MA (1981-08) No per se bar to representation of criminal defendants by firm that employs attorney whose spouse is assistant district attorney even in cases in which firm and assistant district attorney are opposing counsel of record.
• MA (1991-02) Law firms may handle cases for district attorney's office while simultaneously handling criminal defense work in same county so long as certain safeguards are observed.
• MA (1995-3) Close family member of district attorney isn’t automatically disqualified from defending criminal cases within district attorney's county. Consent of defendant will be effective to avoid disqualification.

Attorney Disciplinary Opinions

• In re Discipline of Attorney, 442 Mass. 660, 815 N.E.2d 1072 (2004).  Attorney did not commit ethical violation by delivering copy of state trooper’s deposition testimony to trooper’s supervisor during personal meeting in which attorney expressed his opinion that trooper was incompetent to investigate fires and explosions.
• In re Discipline of Attorney, 422 Mass. 660, 815 N.E.2d 1072 (2004).  Attorney disciplined for giving advice to unrepresented victim of domestic violence case while representing perpetrator of violence.  Even though both parties wanted matter dismissed, court found attorney’s conduct to be unethical.
• In re Foley, 439 Mass. 324, 787 N.E.2d 561 (2003).  Defense attorney suspended for fabricating false testimony for his client in prosecution for DUI and possession of firearm.  Defense counsel and client met on several occasions and made up story to explain gun in car and bullets in defendant’s pocket.  Defense counsel relayed concocted story to prosecutor.

Appellate Decisions

• Commonwealth v. Croken, 59 Mass. App. Ct. 921, 797 N.E.2d 403 (2003). Assistant prosecutor’s undisclosed relationship with defendant’s attorney did not disqualify prosecutor in defendant’s case.
• Commonwealth v. McGowan, 400 Mass. 385, 510 N.E.2d 239 (1987). Institution of new charges after dismissal of earlier, unrelated charges does not by itself constitute vindictiveness.
• Commonwealth v. Reynolds, 16 Mass. App. Ct. 662, 454 N.E.2d 512 (Mass. App. 1983). Special prosecutor not required in case in which member of district attorney’s office was victim of charged crime where victim neither participated in prosecution nor appeared as witness.
• Pisa v. Commonwealth, 378 Mass. 724, 393 N.E.2d 386 (1979). While attorney who previously represented defendant is disqualified from participating in later prosecution of defendant, entire prosecutor’s office is not necessarily disqualified.

MICHIGAN

Ethics Advisory Opinions

• MI (1982-C225) Private lawyers selected from voluntary rotation list by city attorney's office may act as special prosecutors to prosecute misdemeanor ordinance violations on behalf of city attorney's office; as long as private lawyer's participation as special prosecutor is on pro bono basis, lawyer may also represent defendants charged with criminal offenses within jurisdiction.; where private lawyer acts as special prosecutor, another member of same firm may not represent defendant.
• MI (1982-RI012) No conflict exists between prosecuting attorney and prosecutor's spouse and neither is disqualified from performing functions of his/her position by virtue of their relationship.
• MI (1989-RI023) When assistant prosecutor concludes, following routine review of criminal complaint, that although there was probable cause to charge accused it is unlikely that he can be proved guilty beyond reasonable doubt at trial, decision not to prosecute is not prejudicial to administration of justice.
• MI (1989-RI023) Acceptance of contribution from accused's close relative during election campaign for county prosecutor ordinarily is insufficient reason for county prosecutor later to abdicate official duties of office absent other circumstances indicating donation was intended to influence favorable treatment in particular matter.
• MI (1990-RI043) Assistant prosecutor previously employed as judicial clerk is disqualified from representing prosecutor's office before that court in matter involving lawyer's personal or substantial participation as clerk; when assistant prosecutor is disqualified from court proceeding because of prior involvement with case as judicial clerk, and disqualified lawyer holds supervisory position in prosecutor's office, entire staff of prosecutor's office is disqualified from all those proceedings to which individual disqualification applies, unless prosecutor's office can demonstrate mechanism for screening tainted lawyer from participation in case.
• MI (1991- RI082) Criminal defense lawyer acting as landlord may rent office space for use by county prosecutor provided that lawyers both maintain strict confidentiality.
• MI (1991-RI112) Prosecuting attorney is not ethically prohibited from enforcing Incompatible Offices Statute against two of county's commissioners, notwithstanding that prosecuting attorney's office serves as general corporation counsel for county.
• MI (1992- JI56) Assistant prosecutor may not serve as part-time magistrate for district court.
• MI (1992-RI152) When prosecutor is disqualified from case because prosecutor was defense counsel of record in matter, no prosecutors who report to prosecutor may handle appeal for state.
• MI (1995-RI183) Prosecutor serving as legal advisor to Department of Social Services in child neglect matters has duty to evaluate whether circumstances exist which create conflict of interest requiring client consent or prosecutor's withdrawal.
• MI (1995-RI228) Lawyer whose spouse is employed by prosecutor's office is not per se prohibited from representing criminal defendant, provided disclosure and consent are given.
• MI (1995-JI101) Judge whose spouse is assistant prosecuting attorney must disclose relationship on record whenever prosecutor's office appears in matter before judge, prosecutor appearing should disclose whether spouse has participated in pending matter, and judge is recused unless parties voluntarily ask judge to proceed.
• MI (1995-233) Neither assistant prosecutor nor any other lawyer in prosecutor's office is per se disqualified from matter because criminal defendant's lawyer intends to call member of prosecutor's office as character witness for defendant.
• MI (1996-RI283) Prosecutor may establish pro bono legal services program for lawyer employees of prosecutor's office, but conflicts of interest may arise.
• MI (1996-RI280) Prosecutor who is representing prosecutor's spouse in negotiations with insurance company regarding claim may not prosecute arson cases in which insurance company is only remaining statutory crime victim.
• MI (1997-RI302) Professional misconduct for prosecutor to request or to advise complaining witness to refrain from talking with defendant or defense lawyer, or to urge law enforcement officer to make, or to knowingly acquiesce in law enforcement officer making such request or giving such advice.
• MI (2002-RI329) When lawyer, including prosecuting attorney, comes into possession of funds intended to provide restitution to victims, trust account established in accordance with provisions of MRPC 1.15 is required.

Attorney Disciplinary Opinions

Appellate Decisions

• In re Osborne, 459 Mich. 360, 589 N.W.2d 763 (1999). Prosecutor disqualified from termination of parental rights prosecution where had previously represented mother in same matter.
• People v. Ryan, 451 Mich. 30, 545 N.W.2d 612 (1996). Mere threat of additional charges during plea negotiations does not amount to actual prosecutorial vindictiveness where bringing additional charges is within prosecutor’s charging discretion.
• People v. Green, 405 Mich. 273, 274 N.W.2d 448 (1979). Prosecutor prohibited from communicating with defendant known to be represented by attorney without obtaining prior consent of attorney; fact that defendant initiated contact and willing to speak with prosecutor not change prohibition.
• People v. Schram, 142 N.W.2d 662 (Mich. 1966). Brief conversation between juror and prosecutor in public corridor relating to when case might come to end did not entitle defendant to reversal, although it was improper for prosecutor to make reply that he did.

MINNESOTA

Ethics Advisory Opinions

Attorney Disciplinary Opinions

• In re Disciplinary Action Against Fridell, 557 N.W.2d 208 (Minn. 1997).  Attorney holding public office disciplined for having sexual relationship with adult employee of that office; discipline, which was stipulated to by attorney, consisted of public reprimand, resignation of public office and payment of costs related to disciplinary proceeding.
• In re Disciplinary Action Against Serstock, 432 N.W.2d 179 (Minn. 1988).  Chief Deputy City Attorney disciplined for dismissing or delaying traffic ticket brought to him by people to whom he was indebted; fact that would have done same thing for people not indebted to him found not to be mitigating factor.

Appellate Decisions

• Arnold v. Cargill Inc., No. Civ.01-2086 DWF/AJB, 2004 WL 2713259 (D. Minn. 2004). Disqualification of counsel for conflict of interest does not necessarily prevent delivery of work product to new counsel for reason of it being tainted. decision on limits of disclosure of work product must be balanced to prevent injustice to innocent client and protect wronged opponent.
• State v. Miller, 600 N.W.2d 457, 463-464 (Minn. 1999). “The purpose of a disciplinary ‘no-contact rule’ is generally considered to be to protect the represented individual from ‘the supposed imbalance of legal skill and acumen between the lawyer and the party litigant.’ It serves ‘to prevent situations in which a represented party may be taken advantage of by adverse counsel; the presence of the party's attorney theoretically neutralizes the contact.’ The same concerns apply to a corporate party…. The ambit of MRPC 4.2 is not to be confused with an individual's constitutional right to counsel. In contrast to protecting the client's right to counsel, MRPC 4.2 protects the right of counsel to be present during any communication between the counsel's client and opposing counsel. The focus of MRPC 4.2 is on the obligation of attorneys to respect the relationship of the adverse party and the party's attorney. The right belongs to the party's attorney, not the party, and the party cannot waive the application of the no-contact rule - only the party's attorney can approve the direct contact and only the party's attorney can waive the attorney's right to be present during a communication between the attorney's client and opposing counsel.” (citations omitted.) Court held that Rule 4.2 is not limited to only the civil context or in criminal cases only after charges have been filed. Court also interpreted "authorized by law" exception to Rule 4.2 to mean that ”legitimate investigative processes may go forward without violating MRPC 4.2 even when target of investigation is represented by counsel, but when process goes beyond fair and legitimate investigation and is so egregious that it impairs fair administration of justice, it is not "authorized by law." Prosecutor was found to be responsible for investigator actions that violated Rule 4.2.
• State v. Pettee, 538 N.W.2d 126 (Minn. 1995). When prosecutor obtains indictment charging greater offense subsequent to defendant’s successful motion to dismiss his indictment for curable defect, there is no presumption of vindictiveness.
• In re Disciplinary Action Against Evans, 461 N.W.2d 226 (Minn. 1990).  Elected prosecutor publicly reprimanded for talking to news media about juvenile murder prosecution even though gag order had been issued and about another murder case involving a juvenile suspect when apparently statute prohibited.

MISSISSIPPI

Ethics Advisory Opinions

• MS (1962-07) When dealing with jury, it is improper for lawyer to curry favor with flattery or pretended solicitude for their personal comfort.
• MS (1962-08) Lawyer ethically has no right, after verdict, to seek out members of jury before whom he has tried case and question them concerning how certain aspects impressed them, what they thought of certain evidence on both sides of case, and how certain they stood on certain questions.
• MS (1978-45) Part-time prosecuting attorney should not accept private employment arising from situation which he was actively engaged in as prosecuting attorney in employ of State.
• MS (1979-55) Conflict of interest exists when prosecuting attorney represents individual in reinstatement of driving privileges as result of attorney’s prosecution in lower court.
• MS (1982-70) Part-time county prosecutor may accept employment in civil proceeding for malicious prosecution when he was not involved in criminal prosecution regarding same facts.
• MS (1982-75) Improper for city attorney to also hold position of municipal court judge in same jurisdiction.
• MS (1985-111) Attorney practicing law with wife of Assistant District Attorney cannot accept cases within district served by District Attorney for whom Assistant is employed.
• MS (1985-111) Attorney practicing with wife of District Attorney must recuse self from criminal cases within spouse’s district.
• MS (1986-120) Conflict arises when part-time county prosecuting attorney is member of firm considering taking cases dealing with those in which part-time prosecutor participates.
• MS (1987-134) When prosecuting attorney shares office space with criminal defense attorney, proper precautions must be used to maintain client confidentiality.
• MS (1988-142) Conflict of interest exists when special appeals prosecutor simultaneously represents criminal defendant on appeal from city court.
• MS (1996-235) So long as precautions are taken, spousal relation with district attorney does not disqualify lawyer’s firm from representing criminal defendants.

Attorney Disciplinary Opinions

• Sanders v. Mississippi State Bar Assn., 466 So. 2d 891 (Miss. 1985).  Prosecuting attorney may not accept employment in civil matter which involves issues and parties that would likely become subject of criminal proceedings in which he will have responsibility.  Public reprimand issued.

Appellate Decisions

• Patrick v. State, 815 So.2d 1216 (Miss. App. 2001). Defendant must show actual conflict of interest from prior business relationship between prosecutor and appointed counsel.
• Gulley v. State, 779 So.2d 1140 (Miss. App. 2001). Prosecutor’s comment to press that evidence would show defendant embezzled money constituted comment on defendant’s guilt in violation of Rule 3.6 of state Rules of Professional Conduct. “[A]n ethical violation by the prosecutor does nothing to negate the guilt of an indicted defendant…. Although the district attorney may be subject to ethical sanctions for such a violation, that does not per se have any effect on the fairness of the trial. The trial judge had to consider all the issues but not act as an attorney discipline panel in a criminal case against the indicted defendant.”
• Cole v. State, 666 So.2d 767 (Miss. 1995). Mere fact that prosecutor and defense counsel shared office space not establish actual conflict of interest.
• Wagner v. State, 624 So.2d 60 (Miss. 1993). No conflict of interest when former defense attorney now employed with District Attorney’s Office was isolated from prosecution of former client.
• Frierson v. State, 606 So.2d 604 (Miss.1992). Judge should recuse himself where he served as district attorney at time defendant was indicted. Aldridge v. State, 583 So.2d 203 (Miss. 1991). District Attorney’s Office disqualified from prosecuting case where former defense attorney was appointed assistant district attorney in same judicial circuit.
• Aldridge v. State, 583 So.2d 203 (Miss. 1991). District Attorney’s Office disqualified from prosecuting case where former defense attorney was appointed assistant district attorney in same judicial circuit.
• Gray v. State, 469 So.2d 1252 (Miss. 1985). Prosecuting attorney disqualified from case if previously represented or consulted by accused with respect to charged offense.
• Sharplin v. State, 330 So.2d 591 (Miss. 1976). Prosecutor should not participate in criminal prosecution of defendant he previously represented in divorce suit where civil suit and prosecution are intertwined.

MISSOURI

Ethics Advisory Opinions

• MO (970208) Firemen, court personnel, and relatives of law enforcement may be prosecuted without assigning special prosecutor as long as there are no factors related to officers’ or court personnel’s’ relationship with prosecutor’s office that would affect elected prosecutor’s objectivity or objectivity of assigned prosecutor.
• MO (940158) Prosecutor’s office may not handle case where one of prosecutors represents individual in civil matter under criminal investigation; special prosecutor must be assigned to handle case.
• MO (940152) Special prosecutor not required where prosecutor has social relationship and previous attorney/client relationship with victim.
• MO (940152) Attorney not required to request special prosecutor in case where prosecutor has social relationship with victim unless such relationship would affect attorney’s independent exercise of discretion.
• MO (950067) No conflict of interest exists where prosecutor for city X represents defendants in city Y before same judge.
• MO (950160) Under certain circumstances, prosecutor may practice as criminal defense lawyer.
• MO (950247) Prosecutor may serve as municipal judge and as assistant prosecutor in another county.
• MO (950251) Prosecutor may take family law cases if prosecutor is screened from participating in child support cases.
• MO (9500760) Specific conflict of interest does not arise where municipal prosecutor for County X serves as Municipal judge for county Y.
• MO (950187) Municipal prosecutor may serve as prosecutor where relative is judge as long as prosecutor does not appear before relative.
• MO (960050) Part-time prosecutor may not represent client in juvenile matter if conduct occurred within boundaries of city or city police were involved in investigating or responding to underlying situation.
• MO (960137) Prosecuting attorney who has hired new assistant, is not disqualified because of assistant’s former matters which are still pending as long as assistant is effectively screened.
• MO (960175) Attorney not required to attempt to prevent law enforcement from contacting defendant concerning matters unrelated to defendant’s representation by counsel.
• MO (970208) As long as no factors related to officer or employee’s relationship with Attorney’s Office that would affect Attorney’s objectivity or objectivity of assigned prosecutor, firemen, court personnel, and relatives of law enforcement may be prosecuted without assigning special prosecutor.
• MO (970220) Attorneys who are Business partners and prosecutors, should not prosecute case where one attorney is involved.
• MO (980126) Conflict of interest exists where prosecutor’s representation of personal estate is adverse to interests of Department of Social Services.
• MO (20000200) Part-time municipal prosecutor may defend municipal cases in other municipalities, as long as law enforcement officers from municipality, in which attorney is part-time prosecutor, were not involved.
• MO (20030005) Conflict interest may arise when part-time prosecutor represents criminal defendant.

Attorney Disciplinary Opinions

Appellate Decisions

MONTANA

Ethics Advisory Opinions

• MT (1985-850820) Except as law may otherwise expressly permit, lawyer shall not represent private client in connection with matter in which lawyer participated personally and substantially as public officer or employee, unless appropriate government agency consents after consultation.
• MT (1988-881130) City attorney of city which has consolidated its law enforcement (now enforces both city and county law) may not defend criminal actions in county which are being prosecuted by county attorney.
• MT (1995-950407) Spouses may not serve as opposing counsel.
• MT (1996-960827) Propriety of prosecutor receiving funds from Drug Forfeiture Account as part of his salary.

Attorney Disciplinary Opinions

• Matter of Belue, 232 Mont. 365, 766 P.2d 206 (1988).  Attorney physically assaulted another attorney while prosecuting case, attempted to use information he obtained in his position as county attorney to institute civil suit, and represented clients in actions against county while holding position of county attorney.  Supreme Court held that actions constituted ethical violations warranting three-month suspension and public censure.

Appellate Decisions

• Clausell v. State, 326 Mont. 63, 106 P.3d 1175 (2005). Prosecutor’s comments during voir dire and closing argument to effect that defense was “hiding ball” were meant to focus jury on evidence at hand, and were not attack on defense counsel’s integrity.
• State v. Martin, 305 Mont. 123, 23 P.3d 216 (2001). Prosecutor’s comments during closing argument referring to sentencing were improper, but nonprejudicial.
• State v. Stewart, 303 Mont. 507, 16 P.3d 391 (2000). Appellate court held that several comments of prosecutor during closing argument were improper, including those concerning state’s burden of proof (prosecutor attempted to define reasonable doubt in contradiction of state law), prosecutor’s personal opinion (references to some other dude defense), and sentencing of defendant (told jury that judge could sentence defendant to treatment instead of jail).
• State v. Duffy, 300 Mont. 381, 6 P.3d 453 (2000). Not improper for prosecutor to elicit testimony from witness concerning desire to see defendant convicted when defense counsel opened door to this line of questioning.
• State v. Stewart, 303 Mont. 507, 16 P.3d 391 (2000). During trial, prosecutor discovered new evidence and, without disclosing its existence to defense, used it when trial resumed. New trial was ordered because of prosecutor’s failure to notify defendant of newly discovered evidence; Court emphasized prosecution’s continuing obligation to disclose evidence.
• State v. Soraich, 294 Mont. 175, 979 P.2d 206 (1999). Prosecutor’s closing argument comments that certain evidence defense had indicated would be presented in their opening argument had not indeed been presented did not constitute improper burden shifting.
• State v. Whitlow, 285 Mont. 430, 949 P.2d 239 (Mont. 1997). No prosecutorial misconduct found where defense counsel’s closing argument opened door for prosecution’s closing argument comments suggesting defense attempted to keep evidence from them.
• State v. Stringer, 271 Mont. 367, 897 P.2d 1063 (1995). Reiterating that it is “highly” improper to characterize either accused or witnesses as liar or offer personal opinion(s) on credibility and that Rules of Professional Ethics prohibit attorney from asserting personal opinions on credibility of witness, or guilt or innocence of accused, Court granted new trial because, during closing argument, prosecutor improperly referred to defense witnesses as liars, expressed personal opinion as to defendant’s guilt, and commented on evidence not admitted.
• State v. Dixon, 264 Mont. 38, 869 P.2d 779 (Mont. 1994). Although improper, prosecutor’s derogatory comments about defense counsel during jury selection (comments essentially characterizing defense counsel’s voir dire questions as wrong or improper) and references to alleged victim as “female rape victim” in violation of order in limine, did not deny defendant of fair trial.
• State v. Arlington, 265 Mont. 127, 875 P.2d 307 (1994). Court reiterated its “strong disapproval” of characterizing witness' testimony as lies or witness as liar or otherwise commenting upon credibility of witness. Although error, harmless due to overwhelming evidence.
• State v. Campbell, 241 Mont. 323, 787 P.2d 329 (1990). Not reversible error for prosecutor to characterize defendant as liar in rebuttal closing argument when simply responsive to defense counsel’s characterization of defendant in defense closing argument.
• State v. Statczar, 228 Mont. 446, 743 P.2d 606 (Mont. 1987). While prosecutor improperly argued, during closing argument, that prosecutor’s office too busy to prosecute innocent persons, no evidence of resulting undue prejudice. Court, however, cautioned prosecutors to refrain from utilizing this trial tactic.
• Ronek v. Gallatin County, 227 Mont. 514, 740 P.2d 1115 (1987). Lawsuit against county dismissed based on doctrine of prosecutorial immunity which immunizes prosecutor and county from from civil liability for conduct within scope of prosecutor’s duties.
• State v. Dannels, 226 Mont. 80, 734 P.2d 188, 197 (1987). Prosecutor’s single misstatement of law was insufficient to establish claim of prosecutorial misconduct. Court noted, “In other words, it was the kind of oversight that could be made by any person. We cannot reasonably expect prosecutors to be infallible in their knowledge of the law.”
• State v. Gray, 207 Mont. 261, 673 P.2d 1262 (1983). Although Court found no excuse for prosecutor’s failure to caution witness against making reference to defendant’s parole status when prosecutor promised to caution witness, it upheld trial court’s denial of mistrial motion due to lack of resulting prejudice.
• State v. Kramp, 200 Mont. 383, 651 P.2d 614 (1982). Prosecutor’s questioning of defense character witness on matters not pertinent to honesty or veracity was improper and warranted new trial.
• State v. Armstrong, 189 Mont. 407, 616 P.2d 341 (1980). Improper for prosecutor to write word “lie” or “lies” on chalkboard while defendant was testifying; error in this case was not reversible

NEBRASKA

Ethics Advisory Opinions

• NE (1972-07) Part time county attorney may represent estate of regular client where he didn’t participate in investigation of death.
• NE (1972-13) City attorney whose duties include prosecuting violations of ordinances and state statutes may not properly represent anyone charged with crime.
• NE (1976-05) County attorney who participated in obtaining confession from defendant in murder case should not participate in prosecution of trial where there is possibility he will be called as witness pertaining to voluntariness of confession.
• NE (1978-09) Not per se unethical for attorney to represent defendants in criminal cases in county in which close relative of attorney is county attorney.
• NE (1990-03) County attorney may ethically prosecute second cousin in criminal case if county attorney has had no social or business contact with accused.
• NE (1993-05) County attorney, whose husband is police officer in same county, is not disqualified from prosecuting case in which police department is involved unless husband will be called as witness.
• NE (1998-02) Generally, prosecutor should withdraw from criminal case if he or she is to testify in matter on behalf of state; prosecutor need not withdraw if called to testify by defense unless prosecutor’s testimony would be prejudicial to state’s case.

Attorney Disciplinary Opinions

• State ex rel. Nebraska State Bar Ass'n v. Zakrzewski, 252 Neb 40, 560 N.W.2d 150 (1997).  Attorney filed affidavit in which he stated that opposing counsel had counseled opposing party to file false claim of child sexual assault.  Court, noting that attorney failed to investigate and that “[s]uch a failure to properly investigate [rose] to the level of extreme carelessness and surely constitute[ed] recklessly negligent conduct,” disciplined attorney for signing affidavit which contained false statement about opposing counsel’s involvement in making of false claim.
• State ex rel. Nebraska State Bar Ass'n v. Rhodes, 234 Neb. 799, 453 N.W.2d 73, 89-90 (1990).  County Attorney disciplined for developing and fostering relationship with person who was defendant in criminal case as well as subject of several ongoing felony investigations.  Quoting from another opinion, the Court reviewed the rationale for disqualification of prosecutors:  “Courts around the country recognize two policy considerations underlying the disqualification of prosecuting attorneys for a conflict of interest. The first policy served by the rule is fairness to the accused. It is universally recognized that a prosecutor's duty is to obtain justice, not merely to convict.... The second policy served by disqualification of a prosecuting attorney for conflict of interest is the preservation of public confidence in the impartiality and integrity of the criminal justice system.  American courts have consistently held that the appearance of impropriety is sufficient to justify disqualification of a prosecuting attorney.”  (citations omitted.)
• State ex rel. Nebraska State Bar Ass'n v. Michaelis, 316 N.W.2d 46 (Neb. 1982).  Attorney disbarred for public comments impugning reputations of several attorneys including comments attributing unethical or illegal conduct to them.
• State ex rel. Nebraska State Bar Ass'n v. Cook, 194 Neb. 364, 232 N.W.2d 120, 129 (1975).  Attorney given three year suspension for committing perjury while testifying as witness for United States in prosecution for obstruction of justice and conspiracy. Court provided definition of “lie:”  “To lie is to make an untrue statement with intent to deceive.  Webster's Third New International Dictionary, Unabridged.  Even though a statement as to the truth of a fact is mistaken, the statement is not a lie if the sayer himself honestly believes it to be true.”
• State ex rel. Nebraska State Bar Ass'n v. Holscher, 193 Neb. 729, 230 N.W.2d 75 (1975).  County Attorney disciplined for prematurely filing claims for services rendered in connection with foreclosing tax sale certificates and for failing to familiarize himself with law and procedures concerning foreclosing tax sale certificates.

Appellate Decisions

NEVADA

Ethics Advisory Opinions

• NV (1986-01) Private attorney who has partnership with deputy District Attorney may not defend any person charged with violation of ordinance or law.
• NV (1995-23) Criminal defense lawyer may not discourage victim from testifying or urge her to be uncooperative with prosecuting attorney, and must avoid providing any legal advice or counsel to victim; specifically, addresses domestic battery, but may be applied to all cases, whether criminal or civil.

Attorney Disciplinary Opinions

• In re Discipline of Schaefer, 117 Nev. 496, 25 P.3d 191 (2001).  Purpose of ethical rule prohibiting contact with represented persons is to prevent lawyers from taking advantage of laypersons, to preserves integrity of attorney-client relationship, and to prevent inadvertent disclosure of privileged information by layperson.  Rule applies to lawyers who are representing themselves and prohibits contacting opposing side if opposing side is represented by counsel.

Appellate Decisions

• Mainor v. Nault, 101 P.3d 308 (Nev. 2004). In case of first impression, court allowed evidence of Rules of Professional Conduct to be admitted as minimum standards of attorney performance in legal malpractice trial.

NEW HAMPSHIRE

Ethics Advisory Opinions

• NH (1996-97/6) Part-time court prosecutor prohibited from representing criminal defendants in any court.

Attorney Disciplinary Opinions

• O'Meara's Case, 150 N.H. 157, 834 A.2d 235 (2003).  Attorney disciplined for false statements made while appearing pro se in divorce and custody matters.
• Feld's Case, 149 N.H. 19, 28, 815 A.2d 383 (2002).  Attorney suspended for assisting in, condoning and making inaccurate and incomplete sworn responses that he knew were inaccurate in violation of Rule 3.4 of the Rules of Professional Conduct.  Court also found that attorney invoked attorney-client privilege during deposition when knew invocation of privilege not legitimate, but rather bad faith effort to impede opponent's discovery.  “Such conduct violates not only Rule 3.4(d), but also Rule 3.4(c), which requires a lawyer to obey the rules of a tribunal, including Superior Court Rule 35(b)(1), which requires compliance with legitimate discovery requests.”  Court also reiterated that, in disciplinary cases involving dishonesty, lawyer must admit to professional misconduct to truly demonstrate remorse for purposes of mitigation.
• In re Case of Budnitz, 139 N.H. 489, 658 A.2d 1197 (1995).  Attorney disbarred for making false statements in disciplinary proceeding.

Appellate Decisions

NEW JERSEY

Ethics Advisory Opinions

• NJ (1963-05) Attorney who serves as municipal prosecutor should be prohibited from appearing before mayor and council representing personal client.
• NJ (1963-08) Proper for attorney to represent client (where there is previous client attorney relationship and prosecutor had received recusal from prosecuting disorderly case involving client) with regard to preparation of separation agreement with wife's attorney, at instigation of latter.
• NJ (1963-08) Attorney serving as municipal prosecutor is serving as attorney for municipality and is prohibited from appearing against municipality.
• NJ (1963-19) Improper for member of bar at same time to act in interest of client and against client, even if areas of representation are entirely distinct.
• NJ (1964-32) Improper for attorney who is associate city solicitor to engage in civil matter arising from automobile accident, after processing in municipal court traffic violation charged in connection with said accident, even if attorney did not appear there in capacity as prosecutor.
• NJ (1965-73) Part time prosecutor who maintains private office in different district may use stationary and business cards given to him by district within which he is prosecutor.
• NJ (1965-568) Attorney cannot hold positions as both township solicitor and attorney to County Welfare Board.
• NJ (1967-104) Prosecutor may not, in consolidated criminal trial with two defendants, appear in defense of one defendant while prosecuting other.
• NJ (1967-106) Neither county attorney nor assistants can represent private clients in following situations: (a) appearing before county tax board, (b) represent defendant before magistrate in criminal proceeding which is an indictable offense in county which county counsel serves, (c) represent defendant indicted for crime in county, or (d) appearing before any agency of county on behalf of private client.
• NJ (1968-140) Any member of city’s law department who prosecutes cases in municipal court is not permitted to defend police officer in same court.
• NJ (1969-162) Assistant county prosecutor for county in which alleged offense took place may not represent plaintiffs in civil action against municipality, police department and individual members of same located in county for which he is assistant prosecutor.
• NJ (1970-185) It is improper for prosecutor to share office with attorney who is “quasi-criminal” defense lawyer.
• NJ (1971-191) No member of firm may represent criminal defendants in criminal matters in county where former partner is now full time prosecutor.
• NJ (1971-201) Father may not continue to represent criminal defendants once son has dissolved partnership and become full time prosecutor.
• NJ (1972-239) Where offense occurred outside of prosecutor’s municipality and accused resided outside of same municipality, prosecutor may represent accused in another municipality and before county court.
• NJ (1975-314) No conflict where prosecutor represents private client before Director of Division of Motor Vehicles in revocation hearing, provided offense didn’t occur in prosecutor’s municipality.
• NJ (1977-368) Assistant county prosecutor whose mother is chief clerk of juvenile and domestic relations court is not prohibited from appearing before that court in limited fashion.
• NJ (1977-370) Improper for chief legal officer of government body to represent persons accused of violating law within same jurisdiction as officer is employed.
• NJ (1978-394) Prosecutor should not prosecute police officer in municipality where he serves as prosecutor and where defendant is police officer or other officer or employee of same municipality.
• NJ (1978-400) Municipal attorney should not represent municipal police officer who is charged with disorderly persons offense or indictable offense arising out of his duties as police officer in same municipality.
• NJ (1985-563) Improper for prosecutor’s firm to appear actively on behalf of judge in personal matters.
• NJ (1986-584) Conflict of interest created when office building shared between municipal court judge, municipal prosecutor, and municipal attorney.
• NJ (1987-599) Father/brother who have not worked with daughter/sister assistant prosecutor is not barred from practicing criminal defense work in her district.
• NJ (1989-627) Prosecutor can continue to work in municipal court where his second cousin is judge.
• NJ (1998-685) Attorney may not use peremptory challenges to remove potential jurors on basis of race.
• NJ (2000-690) Active police officers may not accept appointment as municipal prosecutor.

Attorney Disciplinary Opinions

Appellate Decisions

• Maldonado v. New Jersey ex rel. Administrative Office, 225 F.R.D. 120 (D.N.J. 2004). Reviewing the doctrine of waiver of attorney-client privilege by inadvertent disclosure and factors necessary to finding such, Court held defendant not waive privilege by inadvertent disclosure of letter written by defendant’s counsel that contained blueprint of defense. Court also reviewed work product privilege and held not waived by inadvertent disclosure of letter. Rejecting defendant’s assertion that case should have been dismissed due to Plaintiff’s lawyers’ retention and use of letter and failure to notify defense of receipt, Court did hold that counsel should be disqualified from representing plaintiff. Good discussion of privileges, waiver analyses and sanctions.

NEW MEXICO

Ethics Advisory Opinions

• NM (1984-10) Except for reasons of dismissal of criminal cases, all information contained within information sheet is matters of public record and could be obtained by news media merely by reference to said public record.”
• NM (1985-10) Assistant district attorney who lives in another district may prosecute traffic cases in district of residence.
• NM (1986-6) Unethical for lawyer to secretly record interviews with witnesses because lawyer is impliedly representing that he is not recording conversations when, by his silence, he does not tell witness he is recording them; lawyer should tell potential witness he is lawyer if witness is not likely to appreciate that witness is being interviewed by lawyer.
• NM (1996-02) Formal opinion 96-02 is not definitive as to whether it is ethical or unethical for lawyer, or someone under lawyer's direct supervision and control, to record conversations without consent of all persons who are being recorded; although practice is not unlawful, special attention must be paid to lawyer's ethical obligations when making, disclosing or using secret recordings, as Rules of Professional Conduct impose high standards of honesty and integrity on lawyers.

Attorney Disciplinary Opinions

• Matter of Howes, 123 N.M. 311, 940 P.2d 159 (1997).  Assistant United States Attorney disciplined for communicating with represented defendant concerning incident with which defendant was charged.  Defendant initiated calls while Assistant United States Attorney, relying upon advice provided by his supervisor, listened, took notes and told defendant that his lawyer would not be happy about call.  Finding there was no "arguable question of professional duty’ needing resolution,” Court first rejected contention that attorney could not be disciplined because was subordinate attorney and following guidance of supervisor attorneys; in doing so, Court analyzed Rule 5.2.  Court also held that attorney “communicates” with person, for purposes of ethics rules, even if just listens to other person talk.  Court distinguished between constitutional and ethical rules on contact with represented persons.
• Matter of Lindsey, 112 N.M. 17, 810 P.2d 1237 (1991).  Prosecutor suspended for knowingly misrepresenting to court and defense counsel that police officer prosecutor had summoned to courtroom was arresting officer when true arresting officer had resigned and moved out-of-state.  In reliance on prosecutor’s assertion that arresting officer was present, plea was entered.  Defendant told his counsel that not think officer was same one but could not be sure because of intoxication at time of arrest.
• In re Truder, 37 N.M. 69, 17 P.2d 951 (N.M. 1932).  District Attorney disciplined for representing State in criminal prosecution and victim of crime in civil case against same defendant arising out of same incident at same time.

Appellate Decisions

• Morales v. Bridgforth, 136 N.M. 511, 100 P.3d 668 (2004). Habeas petitioner may waive conflict of interest, relating to one division of Public Defender Department representing petitioner in arguing claim of ineffective assistance of counsel by attorney from trial division of same Department, if waiver contains both statement by PCR counsel that reasonably believes that representation will not be adversely affected by any potential conflict of interest and statement from petitioner saying that consents to representation after consultation about risks involved in such representation.

NEW YORK

Ethics Advisory Opinions

• NY (1993-660) Couple who dates frequently is ethically barred from trying criminal cases in opposition to one another.
• NY (1994-670) Part-time judge associated in private practice with assistant district attorney may not represent criminal defendants; associate/assistant district attorney may not practice before judge; other members of District Attorney's office may appear before judge.
• NY (1995-672) Partners may hold positions as assistant district attorney and confidential law clerk to County Court judge provided that confidential clerk may not appear before any judge of County Court or practice criminal law and assistant district attorney may not appear before County Court judge employing confidential clerk, although other members of District Attorney's staff are not so restricted.
• NY (1995-675) Assistant District Attorney may not participate in campaign activities on behalf of another person running for public office.
• NY (1999-725) Assistant District Attorney may not appear before Town Justice who is sibling. Other attorneys in District Attorney’s office may appear before Town Justice.

Attorney Disciplinary Opinions

• In re Feindt, 301 A.D.2d 185, 754 N.Y.S.2d 790 (N.Y.A.D. 4 Dept. 2002).  Prosecutor stole witness fee, was fired and criminally prosecuted.  Following entry into diversion agreement, disciplinary proceedings instituted and former prosecutor admitted violating disciplinary rules prohibiting illegal conduct adversely reflecting on honesty, trustworthiness or fitness as lawyer; conduct involving dishonesty, fraud, deceit or misrepresentation; and conduct adversely reflecting on fitness as lawyer.  Court found censure appropriate punishment because attorney had been suffering from depression for which being treated, restitution had been made, attorney demonstrated extreme remorse and community service work had been performed.
• In re Ross, 276 A.D.2d 91, 716 N.Y.S.2d 42 (N.Y.A.D. 1 Dept.  2000).  Prosecutor and her attorney husband were both censured when, at husband’s request, prosecutor tried to use position to undermine traffic summons issued to husband.
• Matter of McDonald, 174 A.D.2d 942, 571 N.Y.S.2d 357 (N.Y.A.D. 3 Dept. 1991).  District attorney censured for representing estates in contravention of law stating full time district attorney could not otherwise practice law.
• Matter of Pollard, 570 N.Y.S.2d 203 (N.Y.A.D. 2 Dept. 1991).  Former prosecutor suspended for, inter alia, submission of fraudulent expense vouchers.
• Matter of Wolfson, 82 A.D.2d 587, 442 N.Y.S.2d 548 (1981).  Former Assistant District Attorney censured for misdemeanor conviction of criminal sale of marijuana (had previously resigned from his position).
• In re Dreiband, 77 N.Y.S.2d 585 (N.Y.A.D. 1 Dept. 1948).  Prosecutor disciplined for knowingly using false testimony of prosecution witness during closing argument. 
• In re Madden, 260 A.D. 932, 24 N.Y.S.2d 127 (N.Y.A.D. 2 Dept. 1940).  District Attorney disbarred for accepting bribes from defense counsel to “go easy” on doctors who were performing illegal abortions.

Appellate Decisions

• People v. Rice, 69 N.Y.2d 781, 513 N.Y.S.2d 108, 505 N.E.2d 618 (1987). Before defendant’s trial, victim died of unrelated causes. Prosecutor not tell defense victim had died; in fact, misled defense into believing victim still alive and going to testify. Citing equivalent of Model Rules 3.3 and 3.8, Court stated acts of prosecutor constituted serious violation of duties as attorney. “Such conduct is reprehensible and cannot be condoned.” “It is the prosecutor’s absolute duty to correct what he knows to be false and elicit the truth, for society gains not only when the guilty are convicted but when criminal trials are fair.” “Egregious misconduct of this kind by the prosecutor undermines confidence, not only in his profession, but in government and the very idea of justice itself.”
• People v. Jones, 44 N.Y.2d 76, 404 N.Y.S.2d 85, 375 N.E.2d 41, cert. denied, Jones v. New York, 439 U.S. 846 (1978). Defendant’s case continued several times for various reasons including prosecution’s inability to locate the complaining witness; prosecution learned complaining witness dead while parties engaged in plea negotiations, but not disclose to defense. Defense learned of death after defendant pled guilty. Court held that, to extent death might have been admissible fact at trial, it would not have constituted exculpatory evidence, it would not fall under Brady v. Maryland, and prosecution’s failure to disclose not deny defendant due process. Court did note that, “…the appropriate remedy might be limited to disciplinary proceedings. In any event, we now express no view on this aspect of the matter.”

NORTH CAROLINA

Ethics Advisory Opinions

• NC (1989-RPC 62) District Attorney may not communicate or cause another to communicate with represented defendant without defense lawyer's consent.
• NC (1989-RPC 72) Attorney hired by Bureau of Indian Affairs to prosecute criminal charges before Tribal Court may represent defendants in state or federal court even if defendants have been arrested by members of Tribal Police Force.
• NC (1991-RPC 95) Assistant district attorney may prosecute cases while serving on school board.
• NC (1993- RPC 129) Prosecutors and defense attorneys may negotiate plea agreements in which appellate and post conviction rights are waived, except in regard to allegations of ineffective assistance of counsel or prosecutorial misconduct.
• NC (1993- RPC 152) Prosecutor and defense attorney must see that all material terms of negotiated plea are disclosed in response to direct questions concerning such matters when pleas are entered in open court.
• NC (1994- RPC 189) Members of district attorney's staff may not give legal advice about pleas to lesser included infractions to unrepresented person charged with traffic infraction.
• NC (1995-RPC 30) District Attorney may not communicate or cause another to communicate with represented defendant without defense lawyer's consent.
• NC (1995-RPC 192) Lawyer may not listen to illegal tape recording made by his client nor may he use information on illegal tape recording to advance his client's case.
• NC (1995-RPC 204) Prejudicial to administration of justice for prosecutor to offer special treatment to individuals charged with traffic offenses or minor crimes in exchange for charitable contribution to local school system.
• NC (1995-RPC 221) Absent court order or law requiring delivery of physical evidence of crime to authorities, lawyer for criminal defendant may take possession of evidence that is not contraband in order to examine, test, or inspect it; lawyer must return inculpatory physical evidence that is not contraband to source and advise source of legal consequences pertaining to possession or destruction of evidence.
• NC (1997-03) Lawyer may engage in ex parte communication with judge regarding scheduling or administrative matter only if necessitated by administration of justice or exigent circumstances and diligent efforts to notify opposing counsel have failed.
• NC (1997-10) Prosecutor may instruct law enforcement officer to send undercover officer into prison cell of represented criminal defendant to observe defendant's communications with other inmates in cell.
• NC (1997-RPC 233) Deputy attorney general who is representing state in capital appeal should send copy to defense lawyer of letter he received from defendant.
• NC (1997-RPC 236) Lawyer may not issue subpoena containing misrepresentations as to pendency of an action, date or location of hearing, or lawyer's authority to obtain documentary evidence.
• NC (1997-RPC 243) Prejudicial to administration of justice for prosecutor to threaten to use his discretion to schedule criminal trial to coerce plea agreement from criminal defendant.
• NC (1998-05) Defense lawyer may remain silent while prosecutor presents inaccurate driving record to court provided lawyer and client did not criminally or fraudulently misrepresent driving record to prosecutor or court.
• NC (2001-15) Lawyer may not communicate ex parte with judge in reliance upon communication being "permitted by law" unless there is statute or case law specifically and clearly authorizing such communications or proper notice is given to adverse party or counsel.
• NC (2003-05) Neither defense lawyer nor prosecutor may participate in misrepresentation of criminal defendant's prior record level in sentencing proceeding even if judge is advised of misrepresentation and does not object.

Attorney Disciplinary Opinions

Appellate Decisions

• State v. Jones, 355 N.C. 117, 558 S.E.2d 97 (2002). Referring to Rules of Professional Conduct and role and obligation of prosecutor, Court held prosecutor’s references to Columbine school shootings and Oklahoma bombing to be improper as deflecting jury from facts at hand and appealing to their passions; also held repeated name-calling by prosecutor (“quitter,” “loser,” “mean,” “lower than dirt on a snake’s belly”) to be improper.
• State v. Jones, 355 N.C. 117, 558 S.E.2d 97 (2002). Court stated that not every improper closing argument necessarily constitutes violation of rules of professional practice and conduct, but that, a minimum, attorneys in North Carolina courts are expected to conduct themselves in accordance with such rules.
• Couch v. Private Diagnostic Clinic, 146 N.C. App. 658, 554 S.E.2d 356 (2001). In civil case, appellate court upheld trial court’s sanctions against attorney who violated rules of professional conduct during closing arguments at trial; sanctions included suspension of attorney's practicing privileges for one year and $50,000-plus penalty).

NORTH DAKOTA

Ethics Advisory Opinions

• ND (1985-01) “City prosecutor in municipal court may appear as defense counsel in any criminal action in any court other than that which he, or any member of his firm, regularly appears as city attorney/prosecutor.”
• ND (1991-02) Part-time State’s Attorney is free to perform criminal defense work in counties other than that in which he holds prosecutorial appointment.”
• ND (1995-02) Opinion addresses whether prosecutor can ethically dismiss case based upon request of city council due to cost, or if he must have matter investigated in order to make determination of whether there is likelihood of conviction.
• ND (2000-05) Defense attorney does not violate rules by contacting police officer in case where defense attorney represents defendant if defense attorney properly identifies himself and his purpose to police officer as required by rules.
• ND (2001-07) Opinion addresses whether information obtained by state’s attorney in commitment proceeding can be used by state’s attorney in criminal proceeding in which defendant is same person against whom commitment was sought.

Attorney Disciplinary Opinions

• Matter of Discipline of Olson, 537 N.W.2d 370 (S.D. 1995).  Court suspended attorney for three years where attorney, while state's attorney, used marijuana and did not seek drug rehabilitation.
• Matter of Discipline of Johnson, 500 N.W.2d 215 (S.D. 1993).  Deputy State’s Attorney suspended for two years for use of marijuana and cocaine.  In his dissenting opinion, Justice Henderson says, “As a people, we cannot tolerate or condone drug activity by prosecutors.  The maintenance of a healthy, free society forbids it. Respect for the courts in our land demands it.  And a respect for the legal profession cannot survive with its existence.”
• Matter of Jelliff, 271 N.W.2d 588 (N.D. 1978).  State Attorney received 60 day suspension for practicing without license and commingling funds and converting funds to own use.
• In re Crum, 55 N.D. 876, 215 N.W. 682 (1927).  Noting that it is not use to which money was put, but purpose for which offered that determines if is bribery, Court found prosecutor accepted bribe.  Six month suspension imposed. 

Appellate Decisions

• Ernst v. Burdick, 687 N.W.2d 473 (N.D. 2004). Disclosure of defendant’s criminal history to media does not create private case of action for defamation under North Dakota version of Uniform Criminal History Records Act.

OHIO

Ethics Advisory Opinions

• OH (87-024) While prosecuting attorney may not practice law in spouse’s courtroom, disqualification of one prosecuting attorney does not per se disqualify all other lawyers serving in office.
• OH (1988-08) Part-time prosecutor may not represent criminal defendants against state in private practice.
• OH (1988-013) Prosecuting attorney may appear before part-time municipal court judge who employs prosecutor’s assistant in private practice.
• OH (1988-15) Former county public defender, now serving as county prosecutor, may ethically appoint assistant as special prosecutor to handle those cases which were pending before public defender’s office at time he served as county public defender.
• OH (1988-25) Lawyer who is participating in or associated with investigation of criminal matter shall not make any statements regarding investigation that reasonable person would expect to be disseminated by means of public communication.”
• OH (1989-09) Municipal prosecutor, who has knowledge that criminal defense attorney is employed as associate of same law firm as county prosecutor, has duty to report such knowledge to tribunal or other authority empowered to investigate or act upon such violation.
• OH (1989-23) Assistant county prosecutor also working as police officer must choose between positions only if one position is subordinate; moreover, he or she may not prosecute any case in which he may be called to testify.
• OH (1990-10) Client of Child Support Enforcement Attorney is state, and custodial parent must be aware at outset of case that CSEA attorney only represents state’s interests.
• OH (1991-22) Conflict of interest arises when siblings are both prosecuting attorney and criminal defense attorney.
• OH (1992-7) Restraints on ex parte communication with party who is represented by legal counsel do apply to attorney’s communications with government party represented by counsel in matter.
• OH (1992-13) Assistant county prosecutor in part time private practice may share office space with or sublet office space from attorney whose practice includes criminal defense representation provided certain requirements are met.  
• OH (1993-7) Assistant county prosecutor and criminal defense attorney who are spouses may not represent opposing parties in criminal matter, except upon disclosure and consent.
• OH (1994-6) When prosecutor becomes aware that criminal action lacks merit, it is improper for prosecutor to offer to dismiss criminal charge in exchange for defendant’s promise to sign release of all civil claims against arresting police officer, other officers at scene, and city.
• OH (1994-6) Proper for attorney who represents criminal defendants in private practice to serve as special county prosecutor in another county when attorney does not represent criminal defendants in court in which he serves as special prosecutor, and attorney accepts appointment only on occasional or isolated basis.
• OH (1994-14) Assistant county prosecutor in part time private practice can share office space with attorney whose practice includes criminal defense representations. Attorneys may co-counsel in civil cases not related to or in conflict with prosecutor’s office.
• OH (1995-11) Not per se improper for different attorneys in same prosecutor’s office to simultaneously handle prosecutions of family or household members charged with committing domestic violence against each other.
• OH (2003-7) Judge may appoint attorney as special prosecutor in same county (and even in same court) in which attorney represents criminal defendants, if such appointment is only on occasional basis and appointee is competent to fill position.

Attorney Disciplinary Opinions

• Ohio State Bar Assn. v. Stern, 103 Ohio St. 3d 491, 817 N.E.2d 14 (2004). Complaint filed against former elected prosecutor for lying to disciplinary office investigators about whether he was recording meeting with them. Due to number of factors, including injury to attorney’s head affecting memory and fact that investigators improperly pursued initial complaint, led Court to conclude prosecutor’s single “no” did not violate rules.
• Disciplinary Counsel v. Armengau, 99 Ohio St. 3d 55, 788 N.E.2d 1068 (2003).  Criminal defense attorney publicly reprimanded for conducting cross examination of State’s witness in one case using his own personal experiences and asking questions which had no basis in fact and, in second case, asking questions disallowed by trial court’s ruling regarding scope of examination of informant. 
• Disciplinary Counsel v. Wrenn, 99 Ohio St. 3d 222, 790 N.E.2d 1195 (2003).  Prosecutor disciplined for failure to disclose exculpatory evidence in child molestation case, i.e., DNA results which favored defendant and victim’s change in story.  Prosecutor negotiated plea with defendant without disclosing this information.
• Lorain Cty. Bar Assn. v. Ross, 97 Ohio St. 3d 224, 778 N.E.2d 39 (2002).  Failure to cooperate in investigation of disciplinary complaint warranted public censure.
• Disciplinary Counsel v. Klaas, 91 Ohio St. 3d 86, 742 N.E.2d 612 (2001).  Attorney disciplined for forwarding information that drug raid was about to be conducted to former client.  There is no indication how attorney got information.
• Disciplinary Counsel v. Jackson, 84 Ohio St. 3d 346, 704 N.E.2d 246 (1999).  Attorney disciplined for yelling obscenity at opposing party and racial slur at opposing party’s counsel.
• Cincinnati Bar Assn. v. Nienaber, 80 Ohio St. 3d 534, 687 N.E.2d 678 (1997). Defense counsel disciplined for failure to disclose client’s correct criminal history in response to direct question by court when attorney knew of prior conviction entered earlier same day.
• Disciplinary Counsel v. Booher, 75 Ohio St. 3d 509, 664 N.E.2d 522 (1996).  Public defender disciplined for engaging in sexual activity with client in jail visitation room.
• Disciplinary Counsel v. Greene, 74 Ohio St. 3d 14, 655 N.E.2d 1299, 1301 (1995). Prosecutor disciplined for knowingly lying to trial court in order to obtain dismissal of charges. Even though ticket supported by facts establishing that school zone was in operation at time of traffic offense, prosecutor, in order to obtain dismissal, told court that school zone not in operation. "It is true that the vigorous and effective representation of a client is the responsibility of all attorneys. This duty, however, does not exist in isolation from the other obligations imposed upon an attorney through our Disciplinary Rules. In addition to the commitment to a client, a lawyer's responsibilities include a devotion to the public good and to the maintenance and improvement of the administration of justice. [T]he attorney's duty, as an officer of the court, is to uphold the legal process and demonstrate respect for the legal system by at all times being truthful with a court and refraining from knowingly making statements of fact or law that are not true." Court also noted that “As a government lawyer, respondent has a duty on behalf of his client to obtain a conviction of the charged offense.”
• Disciplinary Counsel v. DiCarlantonio, 68 Ohio St. 3d 479, 628 N.E.2d 1355 (1994).  City Attorney disbarred for conspiring to change city’s fire ordinances in return for solicited bribe.
• Disciplinary Counsel v. Jones, 66 Ohio St. 3d 369, 613 N.E.2d 178, 179 (1993) Exhibits introduced at first trial of defendant not found before case was retried; during break in retrial, prosecutor found exhibits in their exhibit bag and gave them to deputy clerk of court, telling him what case they belonged to and that case being tried.  When trial resumed, prosecutor not bring discovery or whereabouts of exhibits to attention of either judge or defense attorney; just before argument, bailiff obtained exhibits from clerk’s office and judge allowed late introduction.  In disciplinary proceeding, prosecutor admitted not tell defense attorney due to acrimonious relationship.  Finding the prosecutor’s actions violated DR 7-102(A)(3) (concealing or knowingly failing to disclose that which he or she is required by law to reveal), 7-103(B) (failing to timely disclose the existence of evidence that tends to negate guilt, mitigate the degree of the offense, or reduce the punishment), and 1-102(A)(5) (engaging in conduct prejudicial to the administration of justice), the Court characterized role of prosecutor as that of "standard bearer" of "truth and fairness" and found that Jone's "deceptive conduct * * * flies in the face of his public mandate to protect the rights of all citizens." 
• Disciplinary Counsel v. Carpenter, 68 Ohio St. 3d 99, 623 N.E.2d 1188 (1993).  Village Solicitor permanently disbarred for, inter alia, conversion of funds and failing to pay mortgage due on behalf of village.

Appellate Decisions

• Everage v. Elk & Elk, 159 Ohio App.3d 220, 823 N.E.2d 516 (2004). Uncertified grievances filed with office of disciplinary administrator are not discoverable in legal malpractice litigation due to rules providing that documents relating to review and investigation of grievances shall be private, unless waived by attorney.

OKLAHOMA

Ethics Advisory Opinions

• OK (1932-32) Improper for city attorney to accept employment as special prosecutor in cases involving bank failures.
• OK (1961-215) Acting County Attorney should maintain separate office in which to pursue private practice.
• OK (1966-235) Lawyer may not participate in publicity with respect to pending or anticipated litigation without violating professional ethics of Oklahoma Bar Association.
• OK (1968-254) If relation between Assistant District Attorney and another attorney should consist only of sharing office space, it is not violation of ethical standards for that attorney to accept criminal cases.

Attorney Disciplinary Opinions

• State ex rel. Oklahoma Bar Ass'n v. Wright, 792 P.2d 1171 (Okla. 1990).  Attorney suspended from practice of law for two years and one day for misconduct, including conviction for distributing cocaine to friends; some of acts of misconduct occurred while attorney was prosecutor.
• State ex rel. Oklahoma Bar Ass'n v. Thompson, 781 P.2d 824 (Okla. 1989).  District Attorney received nine month suspension after being convicted of possession marijuana (had resigned as elected district attorney after formal criminal charges had been instituted). 
• State ex rel. Oklahoma Bar Ass'n v. Page, 754 P.2d 878 (Okla. 1988).  Attorney resigned from bar after being convicted of racketeering activities as district attorney.
• State ex rel. Oklahoma Bar Ass'n v. Scanland, 475 P.2d 373 (Okla. 1970).  Former prosecutor disbarred for attempting to bribe police investigator for purposes of destroying arrest record.  In reaching decision, Court reiterated that “a District Attorney, or his assistant, is a minister of justice to a degree second only to judges.  Accordingly, our views in this case are similar to those expressed by the Court in Re Stolen, supra, and, in which, it was said:  'We consider that upon two grounds the judgment of this court must be as hereinafter pronounced: First, the offense of respondent betrays a lack of moral stamina, and therefore a lack of moral character, which renders the respondent an unfit person to hold the office of attorney at law; and, second, the offense is of so grave a character as to call for serious treatment, not only as a matter of discipline to the respondent, but for its restraining influence upon others.'”

Appellate Decisions

OREGON

Ethics Advisory Opinions

• OR (1991-9) Attorney may ethically contact jurors if case tried in Oregon state court, and may be able to ethically contact jurors if tried in U.S. District Court.
• OR (1991-16) Attorney may not contact opposing parties or witnesses in lawsuit if he does not know if parties are represented by counsel.
• OR (1991-26) Prosecutor may not talk to defendant about charge without consent of that defendant’s attorney.
• OR (1991-36) Attorney may campaign for judicial office, provided he follows certain guidelines contained within disciplinary Rules.
• OR (1991-56) Attorneys may not contribute to or solicit funds for “vacation fund” for semi-retired judge who is still sitting part-time on pro term basis.
• OR (1991-60) Absent consent by opposing counsel, attorney may not communicate about matter at issue with opposing party or cause others to do so either in person or in writing.
• OR (1991-71) Attorney may not have ex parte communications with judge in order to obtain suspension of sentence.
• OR (1991-74) It may be ethical for attorney to tape record telephone conversation with individual without informing that individual, but it is not ethically permissible to record private, in-person conversation with individual without informing them of recording.
• OR (1991-113) Acceptable for district attorney to offer plea bargain to defendant in pending criminal prosecution, provided that they comply with Disciplinary Rules regarding such behavior.
• OR (1992-131) Prosecutor and defense attorneys may make ex parte contact with each others expert witness regarding subject of their anticipated testimony.
• OR (1992-139) Prosecutor may threaten to bring more serious charges supported by probable cause in response to defendant’s refusal to plead guilty.
• OR (1995-142) District Attorney may not communicate directly with witness concerning their upcoming testimony after receiving notice witness represented by counsel.
• OR (1995-143) Attorney may not ethically initiate contact with jurors to determine what impressed them about attorney’s arguments or to determine whether any conduct of jurors might give attorney additional argument on appeal.
• OR (1999-156) Attorney may tape record telephone conversation with individual without informing them; attorney may not record private, in person conversation with individual without informing them of recording.

Attorney Disciplinary Opinions

• In re Conduct of Phillips, 338 Or. 125, 107 P.3d 615 (2005).  In context of state’s disciplinary rule making conduct involving misrepresentation professional misconduct, Court noted that to establish that attorney made misrepresentation, Bar must prove by clear and convincing evidence that misrepresentation was knowing, false, and material such that it would or could significantly influence hearer's decision-making process.  Court also reiterated that lawyer makes misrepresentation either when lawyer makes affirmative false statement or when lawyer remains silent despite having duty to speak.
• In re Conduct of Lawrence, 337 Or. 450, 98 P.3d 366 (2004).  Defense attorney suspended for six months for advising and assisting victim of domestic violence when representing perpetrator of violence at same time (assistance including adding language to victim’s “drop charge request” affidavit and allowing victim to type it in lawyer’s office) and for making misrepresentations to court in order to conceal contact.
• In re Flannery, 334 Or. 224, 47 P.3d 891 (2002).  Prosecutor publicly reprimanded for making intentional false statements in application for drivers license.
• In re Gustafson, 338 Or. 468, 41 P.3d 1063 (2002).  Prosecutor disbarred for failure to comply with juvenile court’s expunction proceeding (she produced some of the records for her disciplinary proceeding) and for testifying falsely that she had produced all records relevant to expunction proceeding.
• In re Conduct of Gustafson, 327 Or. 636, 968 P.2d 367 (1998).  Deputy District Attorney disciplined for, inter alia, threatening defense attorney with criminal or ethical prosecution in order to obtain favorable testimony.
• In re Conduct of Gustafson, 327 Or. 636, 968 P.2d 367 (1998).  Deputy District Attorney disciplined for, inter alia, misrepresenting matters to court by failing to disclose impeachment material.
• In re Gortmaker, 308 Or. 482, 782 P.2d 421 (1989).  Application for reinstatement denied when suspended attorney (former District Attorney) had failed to realize seriousness of his criminal convictions and had engaged in practice of law while suspended.
• In re Houchin, 290 Or. 433, 622 P.2d 723 (1981).  Deputy District Attorney disciplined for enrolling in college course in which he was instructor solely for purpose of maintaining veteran’s benefits.
• In re Conduct of Burrows, 291 Or. 135, 629 P.2d 820 (1981).  Prosecutor disciplined for, inter alia, improper ex parte communication with judge about defendant working with police and passing polygraph. 
• In re Conduct of Burrows, 291 Or. 135, 629 P.2d 820 (1981).  Prosecutor disciplined for, inter alia, communicating or causing investigators to communicate with represented defendant without consent of defendant’s counsel and for not countermanding investigators’ admonition to defendant that he not tell his attorney about conversation.
• In re Conduct of Hostetler, 291 Or. 147, 629 P.2d 827 (1981).  Deputy District Attorney publicly reprimanded for communicating with, and allowing investigators to communicate with, criminal defendant they knew to be represented without defendant’s counsel being present as well as concealing communications by failing to countermand investigators’ suggestion to suspect that he not tell his attorney about communication.
• In re Barnes, 281 Or. 375, 574 P.2d 657 (1978).  Deputy District Attorney reprimanded for obtaining search warrant for blood sample, when he knew hearing had been scheduled to determine if warrant should issue.
• In re Complaint of Snyder, 276 Or. 897, 559 P.2d 1273 (1976).  Attorney disciplined for continuing to work and receive fees as private attorney after becoming District Attorney.

Appellate Decisions

• Brown v. Gatti, 195 Or.App. 695, 99 P.3d 299 (2004). A lawyer’s post-trial comments to media about case are not covered by absolute privilege that immunizes lawyers from liability for defamatory statements made in course of litigation.

PENNSYLVANIA

Ethics Advisory Opinions

Attorney Disciplinary Opinions

• Office of Disciplinary Counsel v. Surrick, 561 Pa. 167, 749 A.2d 441, 449 (2000).  Attorney suspended for five years for reckless allegation, made in motion to recuse, that two appellate judges had been “fixed” against Surrick’s case.  In reaching its decision concernng the appropriate sanction against Surrick, the Court noted, “The purpose of our system of professional responsibility and disciplinary enforcement is to protect the public, the profession and the courts from unfit attorneys.  An accusation of judicial impropriety is not a matter to be taken frivolously.  An attorney bringing such an accusation has an obligation to obtain some minimal factual support before leveling charges that carry explosive repercussions.  When an attorney makes an accusation of judicial impropriety without first undertaking a reasonable investigation of the truth of that accusation, he injures the public, which depends upon the unbiased integrity of the judiciary, the profession itself, whose coin of the realm is their ability to rely upon the honesty of each other in their daily endeavors, and the courts, who must retain the respect of the public and the profession in order to function as the arbiter of justice.  ‘Truth is the cornerstone of the judicial system; a license to practice law requires allegiance and fidelity to truth.’  When a lawyer holds the truth to be of so little value that it can be recklessly disregarded when his temper and personal paranoia dictate, that lawyer should not be permitted to represent the public before the courts of this Commonwealth.”  (Citations omitted.)
• Office of Disciplinary Counsel v. Raiford, 546 Pa. 628, 687 A.2d 1118 (1997).  Defense counsel disbarred for using person to impersonate one client, have impersonator confess to crime, plead guilty and be sentenced so that he could use that information to obtain dismissal against second client charged in same incident.

Appellate Decisions

• Bochetto v. Gibson, 860 A.2d 67 (Pa. 2004). Court reiterated that, pursuant to judicial privilege, person entitled to absolute immunity for communications issued in regular course of judicial proceedings and which are pertinent and material to redress or relief sought. Lawyer who faxed reporter copy of malpractice complaint filed with court not entitled to absolute immunity for alleged defamatory statements contained in complaint.
• Office of Disciplinary Counsel v. Raiford, 546 Pa. 628, 687 A.2d 1118 (1997).  Defense counsel disbarred for getting someone to impersonate one client for the purpose of having impersonator confess to crime, plead guilty and be sentenced so that other client/co-defendant could obtain dismissal.

RHODE ISLAND

Ethics Advisory Opinions

• RI (1988-21) Unethical for solicitor to participate in strike by state employees.
• RI (1990-36) Attorney may properly function as part-time assistant city solicitor provided as private attorney does not represent client with interest adverse to city.
• RI (1991-62) Representation as Assistant City Solicitor in lawsuit against another city and city official in individual capacity is permissible if consent of city is obtained.
• RI (1991-41) Ethically permissible for attorney to send flowers to hospitalized judge, even though they expect to appear before that judge again, because it is gift of minimum monetary value.
• RI (1992-90) Ethically appropriate to invite members of judiciary to holiday event.
• RI (1992-28) Attorney prohibited from assisting in prosecution of client.
• RI (1992-33) Attorney who is sharing space with attorney who is also member of city council is not prohibited from practicing before any municipal entity.
• RI (1992-70) Assistant solicitor employed by municipality and under direct supervision of attorney employed by private practice cannot represent municipality in case where supervising attorney is representing opposing interest.
• RI (1992-96) When former client has obtained new counsel, attorney’s communications with that client should be limited to subject of attorney’s liens.
• RI (1993-32) Opinion addresses whether it is permissible for prosecutor to contact victim, who is represented by counsel, directly with regard to pending matter in which he/she is victim.
• RI (1993-88) Law firm that hires former prosecutor to do research cannot continue to represent private client in matter in which former prosecutor participated, unless proper screening takes place, former prosecutor takes no fee, and municipality is informed.
• RI (1994-13) Permissible for resigning prosecutor to continue to represent town in civil proceedings, even where future firm represents defendants in criminal cases, where consent is obtained from both parties.
• RI (1994-20) Prosecutor may not, in giving advice to other towns concerning breathalyzer tests, solicit professional employment from prospective clients in person when motive is lawyer’s pecuniary gain; attorney may send written communications to prospective clients provided that communication is plainly marked “advertisement” and copy of each written letter is sent to Disciplinary Counsel.
• RI (1994-37) Part-time city solicitor is not per se prohibited from representing employee of same city in attorney’s private practice regarding non-city related matters.
• RI (1994-68) Prosecutor does not violate rules of professional conduct by representing town A in misdemeanor cases and taking employment for town B regarding similar cases.
• RI (1995-34) To have conflict of interest between former client and present client, matters must be same or substantially related.
• RI (1995-32) Law firm cannot represent client whose interests are adverse to town while associate of firm is city solicitor for town.
• RI (1995-59) When solicitor is also member of firm, if firm is representing client, solicitor cannot prosecute spouse of client in District Court.
• RI (2001-02) Attorney who shares office space with attorneys who are solicitors may appear before municipality’s zoning board of review.
• RI (2003-01) Town solicitor may represent individuals in civil action against families of two juveniles whom town is prosecuting if solicitor’s office does not represent town in prosecution of juveniles.

Attorney Disciplinary Opinions

• In re DeRobbio, 604 A.2d 1240 (R.I. 1992).  Prosecutor, when providing defense counsel with short rap sheet on witness, warned that record might not be complete and said that witness was career criminal.  Court found prosecutor not violate rules because turned over what was in his possession and notified defense of probability of further record. 

Appellate Decisions

SOUTH CAROLINA

Ethics Advisory Opinions

• SC (1977-01) Circuit solicitor who intends to retire from practice of law and become full-time solicitor may maintain office in building in which he has one-half interest and in which his former firm has offices.
• SC (1977-02) Circuit solicitor who intends to become full-time solicitor may complete pending cases from private practice before taking on full-time position, but may not defend criminal cases.
• SC (1978-22) EC 7-33 and DR 7-107(A), (D), (G), and (J) provide what comments lawyers may make to news media about pending litigation; information may be disseminated to media only on media's request.
• SC (1981-18) City attorney's partner who occasionally does criminal prosecutions in city court may defend clients in other courts unless city attorney is precluded from handling matter in those courts.
• SC (1982-07) City attorney's law partner who occasionally does criminal prosecutions in city court may defend clients in other courts unless city attorney is himself precluded from handling matter in those courts; lawyer should disclose his position as part-time prosecutor and obtain client's consent and he should also disclose on record his position as prosecutor, and court should determine if there is conflict or appearance of impropriety.
• SC (1982-26) While part-time assistant solicitor also employed by private law firm may not represent criminal defendants in any courts, other members of law firm may represent criminal defendants in courts outside county where part-time solicitor employed.
• SC (1983-01) Without advance consent, lawyer may not record telephone conversation with lawyer representing adverse party or another lawyer who is client of lawyer proposing to make recording.
• SC (85-17) Attorney C, who shares office space with sole practitioner Attorney B, wife of Attorney A, who is Solicitor of "X" Circuit, should not be prevented from representing criminal defendants whose charges are being handled directly by Solicitor A, and should not be precluded from continuing criminal practice in any other respects.
• SC (1985-21) County attorney may represent Department of Social Services, provided county attorney's office has no other involvement in child abuse and neglect proceedings.
• SC (1985-23) Legal services can hire wife of assistant solicitor as secretary.
• SC (1988-06) Legal assistant or paralegal required to perform firm duties outside office, legal assistant may have business card which includes firm name; if legal assistant's duties don’t require outside performance, business card showing firm's address and phone number, but not firm name, is acceptable; under either circumstances, designation "Legal Assistant" must be included on card following individual's name.
• SC (1989-02) Attorney in violation of contraband possession laws if takes possession of narcotic drugs given to him by client to be used as evidence.
• SC (1990-05) Attorney must decline representation if knows or it is obvious that he ought to be called as witness; however, if attorney did not testify or where fact-finding portion of suit has ended, conflict between roles as witness and advocate cease to exist and attorney may resume representation of client upon appeal.
• SC (1990-14) Rule 1.6(a) prohibits attorney from voluntarily revealing to third parties identity of clients or amount of work he does for them without first obtaining their consent to disclosure after full explanation of circumstances surrounding disclosure.
• SC (1990-19) Disclosure to opposing witness, after her deposition, that her deposition could have been canceled if plaintiff's attorney would not call her as witness at trial would not be ethically improper.
• SC (1990-25) Law school graduate working for law firm, who has not yet been admitted to Bar, should make his status clear when signing correspondence; he may write that letter is on behalf of firm attorney or some delineation that clarifies his status within firm.
• SC (1990-27) Unless disqualification would cause substantial hardship to client, lawyer may not continue to serve as counsel when lawyer is likely to be necessary witness to impeach testimony of another witness; it does not matter that lawyer is sole counsel for client, except insofar as that fact may affect showing of substantial hardship to client.
• SC (1990-32) If lawyer is necessary witness, lawyer must be disqualified unless such disqualification would work substantial hardship on client.
• SC (1991-02) Unless solicitor's office has consent of counsel for defendant or solicitor is authorized by law to give notice to defendant, solicitor's office would violate Rule 4.2 by sending letters to defendants and their attorneys which would state time and date of defendant's trial, notification of roll call, notification that if defendant fails to appear at roll call solicitor will apply to presiding judge for bench warrant for defendant's arrest, notification that if defendant is not present when his case is called for trial that trial will proceed in his absence, and notification that bond may be forfeited for failure to appear.
• SC (1993-03) Former public defender who joins solicitor’s office may not discuss any cases on which he worked as public defender with any attorneys in solicitor’s office, except for generally known information about former client; where former public defender, now solicitor, worked on these cases, he should recuse himself from them and allow another solicitor to handle cases.
• SC (1993-22) Attorney retained by county to prosecute criminal cases in county magistrate courts made only by South Carolina Highway Patrol and county sheriff's department may defend persons charged with crimes in municipal court.
• SC (1994-30) Generally, client's address communicated in confidence to attorney is information that should not be voluntarily revealed to third parties unless client first consents to disclosure after full discussion and explanation of circumstances surrounding disclosure; if lawyer is called as witness to give testimony concerning client, absent waiver by client, lawyer is required to invoke attorney-client privilege when applicable; if court finds privilege inapplicable, attorney may ethically comply with court's order and disclose client's whereabouts.
• SC (1997-12) Because all indictments handed down during former Solicitor's term were done under his supervision, former elected Solicitor has conflict under Rule 1.11 in representing persons indicted while he served as Solicitor; however, conflict can be waived by State.
• SC (1996-13) Lawyer may employ services of independent paralegal assistance service provided lawyer adequately supervises work of paralegals and remains responsible for work product.
• SC (1997-14) Opinion addresses obligations of lawyer in regard to false or potentially false testimony after verdict entered in case.
• SC (97-14). Opinion discusses duty of attorney, in context of civil case, upon learning of commission of perjury by witness.
• SC (1997-14) In family court child abuse investigation involving allegations that parents abused minor children, Rule 4.2 requires parents’ lawyer to notify child’s guardian ad litem and guardian’s counsel and gain consent prior to communicating with child who went to parents’ lawyer to recant earlier statement against parents.
• SC (1997-41) Absent resignation, attorney who works part-time as special prosecutor should not represent party in civil action where tortfeasor is being prosecuted by solicitor's office in which attorney works; if attorney does resign, former solicitor may not file suit for private client against alleged tortfeasor in county where attorney served if attorney participated personally and substantially in matter concerning client and alleged tortfeasor while prosecutor unless solicitor's office consents after consultation; moreover, attorney may be barred from this representation because of information to which attorney had access.
• SC (1999-03) Not unethical for lawyer in private practice, who is under contract to provide legal services to county sheriff, to present evidence at preliminary hearings provided sole duties at preliminary hearings are to act as witness testifying from sheriff's files.
• SC (1999-09) Attorneys have duty to (1) review web page created by client dealing with current litigation and seeking potential, as well as prospective, witnesses and (2) counsel client about advantages and disadvantages of use of page; if client refuses to follow attorneys' advice on web page, attorneys would be authorized in seeking to withdraw under Rule 1.16(b)(3); if web page does not comply with rules on advertising, attorneys should counsel client about any changes that need to be made to bring it into compliance with those rules and, if client refuses to make suggested changes, attorneys should give serious consideration to withdrawal from representation to avoid any implication that they have authorized or adopted client's continued use of web page.
• SC (1999-14) City Solicitor may not prohibit public safety officers from talking to defense attorneys, may not prohibit defense attorneys from talking to public safety officers, and may not prohibit defense attorneys from contacting public safety officers without first contacting City Solicitor.
• SC (2001-05) Unethical for attorney to obtain subpoena duces tecum in criminal case prior to existence of active arrest warrant or true billed indictment; furthermore, unethical for subsequent attorney, who is aware of unethical conduct of first attorney, to utilize subpoenaed information in criminal prosecution.
• SC (2002-12) Appears ethically permissible for paralegal, under supervision and at direction of responsible attorney, to interview clients alone to gather information, but not permissible for paralegal alone to assist client in execution of documents.
• SC (2003-02) Because attorney’s former representation of Army officer not appear to be substantially related to present criminal charges against officer and attorney learned no confidential information relating to present criminal charges, attorney may serve as prosecuting attorney in Army’s criminal case against Army officer.
• SC (2003-11) Under Rule 3.8(d), prosecutor is required to reveal if officer failed to disclose truth to his superior officer during official department investigation.

Attorney Disciplinary Opinions

• In Matter of Donald V. Myers, 355 S.C. 1, 584 S.E.2d 357, 362 (2004).  Elected prosecutor found to have failed to properly supervise deputy prosecutor to ensure that defense counsel was informed that police officers and deputy prosecutor eavesdropped on and recorded privileged conversation between criminal defendant and his counsel (elected prosecutor told deputy prosecutor to disclose information to defense, but not follow up to see if deputy prosecutor did as told).  Court, issuing private reprimand for this failure to supervise, noted “We hold a [prosecutor] in this state to the highest ethical standards, for his actions determine a criminal's fate.  We understand that the pressures of the position, as well as imperfect communication procedures with the county sheriff's office, may impede the [prosecutor] in exercising his supervisory authority, but no excuse can justify actions which prejudice the defendant in a capital case.  A [prosecutor] must implement and manage a system that enables him to appropriately supervise his deputies so that when he discovers that they may be violating a Rule of Professional Conduct, he can immediately ameliorate any prejudicial effect that the violation may have on the defense.”  Court also issued letter of censure for improper jury contact in another capital case; in that case, after it was noticed that potential juror had two addresses but only one telephone number, investigator on prosecutor’s jury selection team, in prosecutor’s presence, telephoned number and asked if potential juror lived there.  That contact was found to have violated Rule 3.5(b) of state’s Rules of Professional Conduct.
• In Matter of McFarland, 360 S.C. 101, 600 S.E.2d 537 (2004).  Attorney received public reprimand for failure to respond to discovery in timely manner and failure to cooperate with disciplinary investigation.
• In Matter of Humphries, 354 S.C. 567, 582 S.E.2d 728 (2003).  Prosecutor walked in as police surreptitiously listening to confidential conversation between defense counsel and defendant in capital case and told police to stop; prosecutor left without verifying police did stop listening.  Later heard tape had been made of the conversation and received discovery request from defense counsel.  Prosecutor’s failure to respond to defense counsel's discovery requests by reporting rumored existence of videotape recording of meeting of defendant and his former attorney, determine whether rumored existence of tape was correct, and promptly provide defense counsel with copy of tape once existence verified found to have violated Rule 3.4(c)(lawyer shall not knowingly disobey obligation under rules of tribunal except for open refusal based on assertion that no valid obligation exists), Rule 3.4(d)(lawyer shall not, in pretrial procedure, fail to make reasonably diligent effort to comply with legally proper discovery request by opposing party), Rule 8.4(a) (it is professional misconduct for lawyer to violate the Rules of Professional Conduct); and Rule 8.4(e) (it is professional misconduct for lawyer to engage in conduct that is prejudicial to administration of justice).  One-year suspension ordered.
• In re Nester, 343 S.C. 526, 541 S.E.2d 538 (2001).  Public reprimand was warranted for attorney who attached voice activated tape recorder to telephone at his residence and recorded conversations to which he was not party and failed to reveal existence of tapes during discovery portion of domestic litigation between him and estranged wife.
• In Matter of Diggs, 344 S.C. 397, 544 S.E.2d 628 (2001).  Attorney’s knowing submission of false information on his signed and notarized Continuing Legal Education compliance report warranted 90-day suspension from practice of law.
• In Matter of Anonymous Member of SC Bar, 346 S.C. 177, 552 S.E.2d 10 (2001).  In disciplining civil attorney for failure to supervise junior associates, Court looked to Rule 5.1 and held that (1) supervisory attorney can be disciplined for failing to take reasonable measures in supervising attorneys even not know of supervised attorney's inappropriate behavior, (2) law firm partner must take action after discovering another attorney in firm has engaged in ethical misconduct, and (3) attorney need not be day-to-day supervisor of attorney committing misconduct to create liability.
• In Matter of Barton, 347 S.C. 278, 554 S.E.2d 680 (2001).  City Solicitor accepted discipline of public reprimand by consent for sending questionnaires to prospective jurors with cover letter asking jurors to return questionnaires to city solicitor's office.
• In re Grant, 343 S.C. 528, 541 S.E.2d 540 (2001).  Supreme Court held that prosecutor’s violation of discovery requirements set out in Brady v. Maryland, 373 U.S. 83 (1963) – he failed to fully disclose exculpatory material and impeachment evidence regarding statements given by prosecution's key witness in murder case – violated Rules 3.4(d)(failing to make diligent effort to comply with discovery request of opposing party); Rule 3.8(d)(failing to make timely disclosure to defense of known evidence or information that tends to negate guilt of accused or mitigate offense); Rule 8.4(a)(violating Rules of Professional Conduct); and Rule 8.4(e)(engaging in conduct that is prejudicial to administration of justice).
• In re Duncan, 340 S.C. 622, 533 S.E.2d 894 (2000).  Criminal defense attorney indefinitely suspended for releasing copy of videotaped conversation with client to news media with intent to expose actions of police and influence client’s upcoming capital murder trial to client’s advantage, testifying falsely before federal grand jury denying release of tape, and conviction for making false declaration to grand jury.
• Matter of Anonymous Member of South Carolina Bar, 304 S.C. 342, 404 S.E.2d 513 (1991).  Court held that attorney shall not record conversations or any portion of conversations of any person whether by tape or other electronic device, without prior knowledge and consent of all parties to conversation, and that rule applies regardless of purpose(s) for which such recordings are made, intent of parties to conversation, whether anything of confidential nature was discussed, and whether any party gained unfair advantage from recordings.
• Matter of Delgado, 279 S.C. 293, 306 S.E.2d 591, 593 (1983).  Defense attorney, thwarted in efforts to conduct press conference, brought reporter friend with him to prison to see client.  Attorney misrepresented identity of reporter and purpose of visit as legal when it was just opportunity for reporter to interview client.  Court found attorney violated disciplinary rules dealing with disseminating information to the press and public and engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation.  Public reprimand issued for this and other violations.
• Matter of Delgado, 279 S.C. 293, 306 S.E.2d 591, 593 (1983).  Attorney talking to two jurors who had finished serving on jury of case that had concluded, about how attorney might improve trial skills when approached by jury who had served on the concluded case and was then serving on jury in case attorney presently trying.  Attorney allowed him to join in discussion, but advised that could not talk about trial currently underway.  Conversation continued for another five to twenty minutes and included attorney's view of lawyer's role in defending person he knows to be guilty, jury dynamics and attorney’s life/practice.  Court, concluding attorney violated disciplinary rule prohibiting contact with sitting member of jury, explained purpose of rule.  “The rule is intended not only to prevent an intentional attempt to bias or prejudice a juror but to prevent the appearance of impropriety and the possibility of one attorney gaining advantage in a trial by befriending or becoming intimate with a juror through ‘innocent’ conversation.”  Public reprimand issued for this and other violations.
• In Matter of Mike S. Jolly, 269 S.C. 668, 239 S.E.2d 490 (1977).  Prosecuting attorney disciplined for accepting fees in civil case arising out of reckless homicide case he was prosecuting.

Appellate Decisions

• State v. Peake, 353 S.C. 499, 579 S.E.2d 297 (2003). Citing to Rule 3.8 of the state’s Rules of Professional Conduct and cases from other jurisdictions, Court discussed role and duty of prosecutor.
• Gibson v. State, 334 S.C. 515, 514 S.E.2d 320, 327 at n. 6 (1999). In context of Brady v. Maryland, 373 U.S. 83 (1963), violation, Court noted that use of term "misconduct" is not necessarily synonymous with misconduct as defined in ethical rules that govern lawyers.
• State v. Williams, 326 S.C. 130, 485 S.E.2d 99, 102 (1997). Prosecutor told counsel for cooperating co-defendant that not in cooperating co-defendant’s best interest to talk to defendant’s counsel, but if did talk, prosecutor should be present. Court held comments amounted to improper intimidation of potential defense witness and that denial of due process results if “intimidation amounts to ‘substantial government interference with a defense witness’ free and unhampered choice to testify.’”

SOUTH DAKOTA

Ethics Advisory Opinions

Attorney Disciplinary Opinions

• Matter of Discipline of Olson, 537 N.W.2d 370 (S.D. 1995). Court suspended attorney for three years where attorney, while state's attorney, used marijuana and did not seek drug rehabilitation.
• Matter of Discipline of Johnson, 500 N.W.2d 215 (S.D. 1993). Deputy State’s Attorney suspended for two years for use of marijuana and cocaine. In his dissenting opinion, Justice Henderson says, “As a people, we cannot tolerate or condone drug activity by prosecutors. The maintenance of a healthy, free society forbids it. Respect for the courts in our land demands it. And a respect for the legal profession cannot survive with its existence.”
• In re Bartlett, 47 S.D. 208, 197 N.W. 285 (1924).  State’s Attorney publicly reprimanded for using influence of his office to coerce settlement in civil cases.
• In re Wilmarth, 42 S.D. 76, 172 N.W. 921 (1919).  State’s Attorney disciplined for involvement in both criminal and civil cases arising out of common nucleus of facts.

Appellate Decisions

TENNESSEE

Ethics Advisory Opinions

• TN (1981-12) No per se rule baring part-time prosecutor from representing alleged father in defense of paternity suit.
• TN (1983-55) Not improper for District Attorney to prosecute welfare fraud after providing child support enforcement services to same person.
• TN (1984-66) Opinion addresses whether certain information received by prosecution is confidential, and whether prosecutor may have defense attorney testify.
• TN (1986-107) If attorney disqualified from employment in particular matter then any partner or associated is also disqualified.
• TN (1987-11) Vicarious disqualification should be examined and determined by court on case-by-case basis.
• TN (1987-112) State prosecutor is ethically obliged to avoid any and all communications with defendants without knowledge and consent of defendant’s attorney.
• TN (1988-116) Prosecutor, having probable cause to believe that notice to prior attorney-of-record will likely result in defaulting obligor fleeing jurisdiction, may apply to Court having jurisdiction on matter for permission to file petitions for contempt and attachment without notice to attorney-of-record.

Attorney Disciplinary Opinions

• Zimmermann v. Board of Professional Responsibility, 764 S.W.2d 757 (Tenn. 1989).  Prosecutor privately reprimanded for improper statements made to news media immediately after preliminary hearing (about evidence not introduced at preliminary hearing) in one case and improper statements prior to sentencing proceeding in another.  Court, although rejecting constitutional challenge to application of rule, noted appreciation to NDAA and Tennessee prosecution and defense associations for amicus curiae briefs.
• Ramsey v. Board of Professional Responsibility of Supreme Court, 771 S.W.2d 116 (Tenn. 1989).  Prosecutor disciplined for leaving courtroom and slamming door while judge was addressing jury and for willful failure to answer direct questions from judge.

Appellate Decisions

TEXAS

Ethics Advisory Opinions

• TX (1948-12) Attorney may write and sell publication articles of general nature on legal subjects for newspapers, magazines, or trade journals, provided he does not advise inquirers in respect to their individual rights.
• TX (1948-17) Attorney is prohibited from communicating with party represented by counsel for any purpose; attorney may interview potential witness, other than party, even though witness may be employee of party, where attorney makes full disclosure of his connection with litigation and explains purpose of interview.
• TX (1949-23) Member of firm (or partner) who is county attorney in county of firm's domicile may not defend person then being prosecuted for crime in another Texas county.
• TX (1950-32) District attorney may not prosecute relative.
• TX (1951-37) Law partner of county attorney may not practice criminal law in district court of county in which his partner is county attorney.
• TX (1953-87) Prosecuting attorney may not have defendant in criminal case examined by doctors during course of trial without knowledge or consent of defendant's attorney.
• TX (1954-94) Attorney, whose employment as special prosecutor was sought by prosecuting witness in criminal case, is prohibited from later accepting employment as defense counsel in same case.”
• TX (1955-109) Prosecuting husband for child desertion precludes district attorney from representing wife in divorce action.
• TX (1956-126) County attorney is not prohibited from accepting employment as special prosecutor in felony case even though he is charged with responsibility of prosecuting misdemeanors in that county.
• TX (1956-132) Not improper for attorney to serve as district attorney without severing his membership in law firm so long as no member of firm takes civil or criminal case against state or county.
• TX (1956-137) Since defendant in criminal action is party, district attorney may not attempt to elicit statement or plea of guilty from defendant nor submit him to lie detector test or otherwise deal with defendant without consent of his attorney when one has been engaged; duty of district attorney is not to convict, but to see that justice is done.
• TX (1957-144) Non-lawyers on staff of district attorney seeking pleas of guilty from those accused of crime without consulting accused's attorney beforehand is improper as it is negotiation with opposite party and furthers practice of law by persons not members of State Bar.
• TX (1958-183) Improper for district or county attorneys or county judges to accept employment in any case in which they are (1) acting adversely to state or county; (2) forbidden by statute to act; (3) employed because of their official capacity; or (4) engaging in activities which would interfere with full and efficient performance of official duties.
• TX (1958-187) Law partner of county attorney may not assist in defense of criminal case in district court.
• TX (1959-226) County Attorney or his assistant may properly see and talk with person in jail shortly after his arrest for purpose of later testifying at trial for offense involved, provided arrested person does not have attorney at time of conversation; at trial, such official may testify when some other person in office is assigned to prosecute cause.
• TX (1960-195) Improper for two attorneys to continue as partners when one is County Attorney and other is County Judge of same county.
• TX (1965-307) District Attorney (or law firm) may not ethically represent bonding company defendant in civil suit filed by county situated in district for misappropriation by county official after presentation by District Attorney of facts to grand jury.
• TX (1966-312) Unethical for prosecuting attorney to represent police officer in civil action for overtime wages when duty might require investigation or prosecution of criminal action arising out of same facts.
• TX (1967-332) Improper for public prosecutor to represent any party in civil matter arising out of occurrence which is subject of criminal investigation or prosecution within jurisdiction of such prosecutor.
• TX (1968-342) It is not unethical for attorney to interview and take statements from employees of adverse party without consent of opposing counsel provided full disclosure is made and provided further that employee is not officer or managing employee of party and is not person whose conduct gives rise to controversy.
• TX (1971-356) District Attorney should not use official stationery in personal practice.
• TX (1973-365) Prosecuting attorney should not do any act or take any position calculated to deny criminal defendant's right to full and fair trial.
• TX (1974-369) District attorney in criticizing trial judge at press conference after trial by stating that judge acted unethically and illegally and constituted reversible error did not violate any Disciplinary Rule, but is questionable under Ethical Consideration 8-6.
• TX (1986-430) Attorney in district attorney's office may undertake representation of another attorney in office who is defendant in suit in federal court relating to matters arising in district attorney's office unless he or another attorney in office other than defendant attorney ought to be called as witness in suit.
• TX (1987-441) Attorney in county domestic relations office may not prosecute wife during or after prosecuting husband; instead, another attorney in county domestic relations office may prosecute wife provided that certain conditions are met.
• TX (1987-454) Prosecutor, as any other attorney, should avoid participating in any case where implication of partiality might cast shadow on integrity of office; if, in instant case, prosecution is pursued by counsel within District Attorney's Office, such shadow would most certainly exist.
• TX (1987-455) Improper for lawyer who represents plaintiff in civil suit alleging cause of action against defendant to assist in prosecuting criminal charge against same defendant.
• TX (2001-538) Newly elected district attorney is prohibited from prosecuting both motion to revoke probation in case where he served as defense counsel in original proceeding and new charges against former client without former client’s consent.
• TX (2002-539) Spouse may not represent criminal defendant where spouse is district attorney unless reasonable belief that there will be no effect exists.

Attorney Disciplinary Opinions

• Vickery v. Commission for Lawyer Discipline, 5 S.W.3d 241 (Tex. App. 1999).  Attorney litigant is subject to Rule 4.2 even if represented by counsel.  Court reiterated purpose of Rule 4.2 is to preserve integrity of client-lawyer relationship by protecting represented party from superior knowledge and skill of opposing lawyer.
• Commission for Lawyer Discipline v. Benton, 41 Tex. Sup. Ct. J. 150, 980 S.W.2d 425 (1998).  Attorney disciplined for post-trial communication that was insulting to jury and intended to influence their future jury service.

Appellate Decisions

UTAH

Ethics Advisory Opinions

• UT (1965-01) Deputy county attorneys should not be assigned to represent indigent defendants in other counties.
• UT (1972-06) City attorney whose position includes prosecutions may not defend those charged with misdemeanors and criminal offenses in other jurisdictions unless assigned to do so by court.
• UT (1972-10) Municipal attorneys in sparsely populated areas may represent criminal defendants in other municipalities.
• UT (1973-15) County attorney may not accept employment in civil matter where he had previously determined that there was not sufficient cause to bring criminal charges.
• UT (1973-16) County attorney may not represent persons accused of crimes in other states but may make available to attorney retained in other state information developed in private civil case which county attorney worked on.
• UT (1978-48) While attorney candidate for political office may not use endorsement statements of judge, he may use endorsement of former client if used for sole purpose of garnering votes provided endorsements are done in dignified manner.
• UT (1980-73) Municipal prosecutor may not represent criminal defendants in same circuit court district, even if defense is conducted in different divisions of court.
• UT (1994-126) City attorney with prosecutorial functions may not represent defendant.
• UT (1995-05) Subject to exceptions stated in rule, Rule 4.2 intends to restrict unauthorized ex parte contracts with any person who is represented by counsel concerning matter in question, whether or not person is party to formal legal proceeding; therefore, Rule 4.2 restrictions are intended to apply to "represented persons," with whom Regulation would permit certain ex parte contacts; under certain specific factual circumstances, government lawyer may make ex parte contacts with persons represented by counsel.
• UT (1996-04) Recording conversations to which attorney is party without prior disclosure to other parties is not unethical when act, considered within context of circumstances, does not involve dishonesty, fraud, deceit or misrepresentation.
• UT (1998-01) Prosecuting attorney acting as private practitioner should avoid engaging in civil action that involves parties and facts that have been or become subject of criminal investigation within prosecutor's jurisdiction.
• UT (1999-01) Lawyer is required to bring to attention of opposing counsel receipt of any communication between opposing counsel and his client unless it is clear from circumstances that attorney-client privilege has been intentionally waived.
• UT (1999-02) Generally, lawyer who negotiates or otherwise communicates with non-lawyer representative on substantive matters affecting rights of parties to particular matter is not assisting in unauthorized practice of law if that representative is supervised by lawyer as required under Rule 5.3; when non-lawyer representative is employed in lawyer's office, lawyer communicating with such representative may presume that representative is supervised within requirements of Rule 5.3, unless lawyer is aware of facts and circumstances that impart knowledge that adequate supervision is lacking.
• UT (1999-06) Attorney may not seek concurrence of investigating police officer not to respond to subpoena lawfully issued by Utah Driver License Division in connection with related driver-license revocation hearing.
• UT (2001-06) Private representation of individual by part-time county attorney at protective-order hearing is not per se violation.

Attorney Disciplinary Opinions

• In re King, 7 Utah 2d 258, 322 P.2d 1095 (1958).  Attorney disciplined for failure to rectify client’s perjury during court hearing.

  We cannot permit a member of the bar to exonerate himself from failure to disclose known perjury by a self-serving statement that in his judgment he had a duty of non-disclosure so as to protect his client which is paramount to his duty to disclose the same to the court, of which he is an officer, and to which he in fact, owes a primary duty under circumstances such as are evidenced in this case.  Nor can we subscribe to any principle that would permit a member of the bar to bide his time and decide himself when the disclosure should be made.  This is particularly so, when, as here, it was made immediately after the falsity had been literally pried out of the false witnesses by opposition counsel, and at a time when a shadow already has been cast on a sincerity which was not evident prior to the time of such forced disclosure. We believe the answer in this case can be found in the language of Thornton on 'Attorneys at Law,' Vol. 2, p. 1235, Sec. 822, quoted by respondent, where it is said:

  'An attorney is never justified in continuing a case after he has knowledge of the fact that it is being supported by perjured testimony; and if he proceeds with the trial thereafter, without acquainting the court of the fact that the testimony is false and seeks to recover judgment on such testimony, his misconduct merits disbarment.'

  Id., 322 P.2d at 1098.

Appellate Decisions

VERMONT

Ethics Advisory Opinions

• VT (1979-02) State’s attorney may not institute criminal proceedings in order to assist third person in collecting moneys due and owing from defendant.
• VT (1979-03) Attorney may interview juror after criminal or civil trial, prior to end of juror’s service on current jury panel with regard to matters pertaining to juror’s reaction to case.
• VT (79-20) Vermont practicing attorney who is married to Vermont trial judge is not barred from practicing before district court bench in general and practicing attorney’s associates in attorney general’s office are not precluded from practicing before attorney’s spouse.
• VT (1987-16) State's attorney may not insist as part of plea agreement that defendant enter plea of guilty rather than nolo contendere when sole motive of prosecutor is to attain advantage for victim in subsequent civil litigation.
• VT (1988-09) Improper for member of firm to act as part-time prosecutor in one County, while this attorney and other members of firm are conducting criminal defense work in other Counties.
• VT (1992-05) Deputy State's Attorney should not prosecute case in which he or she will be called as witness; however, other attorneys in that prosecutor's office are not necessarily required to recuse themselves from case.
• VT (2001-11) Attorney, who holds position as part-time State’s Attorney and has separate private practice, may represent private party in litigation where State is opposing party and litigation is not related to attorney’s position as State’s attorney.
• VT (2003-03) Under limited circumstances, attorney who is "of counsel" to firm may work part-time as Assistant Attorney General, when firm and Attorney General's office represent adverse parties in litigation not related to work of attorney for State.

Attorney Disciplinary Opinions

Appellate Decisions

VIRGINIA

Ethics Advisory Opinions

• VA (1416) Improper for attorney who leases office space to Commonwealth’s Attorney, while also sharing waiting room, receptionist, and law library, to simultaneously represent criminal defendant clients who are being prosecuted by Commonwealth’s Attorney.
• VA (1569) Unethical for counsel to allude to possible criminal prosecution for sole purpose of advancing civil claim.
• VA (1578) Not improper for attorney who leases office space to or from Commonwealth’s Attorney to represent criminal defendants if certain precautions taken.
• VA (1991-1415) Where victim/witness in criminal trial is also defendant and is represented by counsel, any communication conducted between prosecutor and victim/witness who is defendant in cross-warrant would be improper and violative of Rule unless prosecutor had received prior consent from individual’s defense attorney.
• VA (1992-1465) There is no impropriety in Commonwealth’s Attorney prosecuting those charged with trespassing on homeowner association’s community property when Commonwealth Attorney is either member or elected official of association.
• VA (1993-1539) Improper for attorney to accept representation of client under circumstances where attorney knows or it is obvious that he or lawyer in his firm ought to be called as witness.
• VA (1993-1542) If appropriate court determines extrajudicial statements constituted danger to fair trial, statements would then be per se violation of Ethics Rules.
• VA (1994-1594) If appropriate court determines extrajudicial statements endangered fair trial, statements would then be per se violation of Ethics Rules.
• VA (1995-1614) Lawyer shall not threaten criminal prosecution solely to gain advantage in civil matter; not per se unethical for attorney to threaten criminal prosecution to gain advantage in criminal case, subject to constraints of Disciplinary Rules.
• VA (1995-1671) It is not ethically permissible for lawyer either directly or indirectly through another, to advise or cause other party’s expert witness not to testify
• VA (1996-1679) Not improper for attorney engaged in criminal investigation to participate in, or to advise another to participate in, communication with third party which is electronically recorded with full knowledge and consent of one party to conversation, but without knowledge or consent of other party, as long as recording is otherwise lawful.
• VA (2000-1741) It is not improper for prosecutor to inform witness that they have right to speak or not speak with investigator working for defense; Rule 3.8(c) prohibits prosecutor from making any remarks, including references to questionable tactics employed by some investigators that would explicitly or implicitly instruct or encourage witness to withhold information from defense.
• VA (2002-1767) Permissibility of prosecutor’s statements made in court are governed by Rules’ general provisions regarding restrictions on attorney’s professional communications.

Attorney Disciplinary Opinions

• Morrissey v. Virginia State Bar, 248 Va. 334, 448 S.E.2d 615 (1994).  Prosecutor suspended for failure to disclose entire plea agreement to court and for accepting thing of value for purpose of influencing action as prosecutor (undisclosed information included defendant’s payments to charities of prosecutor’s choice – also “thing of value”).
• Gunter v. Virginia State Bar, 238 Va. 617, 385 S.E.2d 597 (1989).  Attorney given 30 day suspension for authorizing or recording conversation between third persons to which lawyer was not party and participants not consent.

Appellate Decisions

• Morris v. Commonwealth, No. 2905-00-2, 2002 WL 53886 (Va. App. 2002). Not desirable for prosecutor to testify as witness on material point in case; any prosecutor expecting to testify on material point should recuse self. Mere fact that challenged testimony helps establish some matter on which prosecution bears burden of proof not necessarily render that testimony material or prejudicial to defendant.

WASHINGTON

Ethics Advisory Opinions

• WA (1950-1) Not proper for attorney to accept employment representing client in civil suit if attorney has prosecuted someone arising out of same transaction or occurrence.
• WA (1959-59) No conflict where attorney, who works for county or state in position of prosecuting attorney, takes position in another public office for same county or state.
• WA (1960-74) Not unethical for prosecuting attorney to represent plaintiff in civil action where adverse party is represented by deputy prosecuting attorney where such deputy maintains separate offices in adjoining city.
• WA (1965-132) Not proper for judge, prosecuting attorney or city attorney who has tried or prosecuted defendant in criminal case to then represent plaintiff in claim against same defendant involving same transaction or occurrence.
• WA (1971-149) Not unethical for lawyer to serve as prosecuting attorney and city councilman simultaneously.

Attorney Disciplinary Opinions

• In re Disciplinary Proceeding Against Romero, 152 Wash. 2d 124, 94 P.3d 939 (2004).  Defense attorney disbarred for, inter alia, requesting fees and costs from relatives of clients in court-appointed cases.
• In re Disciplinary Proceeding Against Michels, 150 Wash. 2d 159, 75 P.3d 950 (2003).  Attorney who served as part-time judge in one jurisdiction and part-time public defender in another disciplined for presiding over cases of clients he represented as public defender.
• In re Disciplinary Proceeding Against Carmick, 146 Wash.2d 582, 48 P.3d 311 (2002).  Purpose of ethical rule prohibiting attorney from communicating about subject of representation with party attorney knows to be represented unless attorney has consent of party's attorney is to prevent opposing attorney from taking advantage of represented party.
• In re Disciplinary Proceedings Against Bonet, 144 Wash. 2d 502, 29 P.3d 1242 (2001).  Prosecuting attorney found to have violated Rules 3.4(b), 8.4(b) and 8.4 (d) by offering to dismiss criminal charges against potential witness for criminal defendant if witness would absent himself from criminal defendant's trial by invoking witness's right against self-incrimination.
• Matter of Disciplinary Proceedings against Simmons, 110 Wash. 2d 925, 757 P.2d 519 (1988).  Attorney disbarred for giving whiskey to adverse witness who was known alcoholic on day before testimony in order to affect testimony.
• Matter of McNerthney, 95 Wash. 2d 38, 621 P.2d 731 (1980).  Prosecutor learned search warrant being issued to look for drugs at house of acquaintance who prosecutor had previously talked to in attempt to persuade him to stop dealing drugs; prosecutor went out drinking with office associates, became intoxicated and went to aquaintance’s house to yell at him, during which he gave him notice of search warrant.  Prosecutor found to have revealed a confidence of his client, the State, in violation of disciplinary rules and letter of admonition issued.

Appellate Decisions

WEST VIRGINIA

Ethics Advisory Opinions

• WV (1976-03) Unethical for private attorneys to represent criminal defendants where prosecuting attorney shares office space, personnel, and stationary with two private attorneys.
• WV (1977-09) Improper for prosecutor or member of his staff to prosecute an action on behalf of private client against Workmen’s Compensation Commissioner.
• WV (1978-01) Prosecuting attorney may engage in private civil practice, but lawyer who attempts to act in both capacities should not accept private employment which is inconsistent with or antagonistic to public employment.
• WV (1978-02) Improper for prosecuting attorney to represent any parties to accident in civil suit where prosecutor has investigated accident but determined that criminal prosecution was not warranted.
• WV (1983-04) Not ethically proper for prosecuting attorney to represent claimant in matter before Court of Claims.
• WV (1984-00) It is not necessary for prosecutor to disqualify himself when accused is former client, provided that relationship between two had been terminated prior to criminal charges
• WV (1985-2) Lawyers serving together in prosecuting attorney’s office are not members of “law firm” for purposes of imputed disqualification.
• WV (1985-06) Not conflict of interest per se for county prosecuting attorneys to investigate and/or prosecute county officials.
• WV (1990-02) West Virginia magistrates are currently compelled to issue cross complaints without previous investigation and prosecutors are compelled to prosecute cases in which probably cause exists; under this system, it is advisable for prosecutors to conduct investigations into allegations, move to dismiss unsupported allegations, and to present evidence in subsequent proceedings; consolidation of these proceedings would not prejudice rights of parties and may provide for greater judicial economy.
• WV (1992-01) When prosecuting attorney is disqualified for any reason, that disqualification is imputed to entire office.
• WV (1993-03) Prejudicial to administration of justice for municipal judge to be employed simultaneously as assistant prosecuting attorney.

Attorney Disciplinary Opinions

• Lawyer Disciplinary Bd. v. Scott, 213 W. Va. 209, 579 S.E.2d 550 (2003).  Prosecutor disciplined for conduct which included failure to pay annual registration and then lying about lack of registration when questioned by judge.
• Lawyer Disciplinary Bd. v. Sims, 212 W. Va. 463, 574 S.E.2d 795 (2002).  Prosecutor disciplined for repeatedly making improper extrajudicial statements to media; appropriate punishment was public reprimand when had already been removed from office.  Court held that repeated and intentional violations of Rules 3.6 (a) and 3.8 (e) fall within ambit of 8.4.
• Lawyer Disciplinary Bd. v. Turgeon, 210 W.Va. 181, 557 S.E.2d 235 (2000).  Attorney disciplined for incompetent representation of client in murder case and in separate narcotics prosecution.
• Lawyer Disciplinary Bd. v. Farber, 200 W. Va. 185, 488 S.E.2d 460 (1997).  Attorney disciplined for revealing confidential information of client in motion to withdraw and for threatening same client.
• Committee on Legal Ethics of West Virginia State Bar v. White, 189 W. Va. 135, 428 S.E.2d 556, 559-560 (1993).  Prosecutor received two year suspension for possession of cocaine, marijuana, and percocet.  Court reiterated that prosecutors facing discipline are held to higher standard.  "We have taken pains to stress that a lawyer who holds public office is held to a higher ethical standard simply because of his position of public trust.  The argument was advanced in Committee on Legal Ethics v. Roark, supra, that an attorney who was a public official should not be held to any elevated standard. In rejecting this argument, we said:  ‘In Graf [v. Frame, 177 W.Va. 282, 352 S.E.2d 31 (1986) ], we made this observation: '[A]n attorney who is a public official is held to a high standard of conduct because of his or her (1) professional and (2) public trustee responsibilities.'  We went on in Graf to quote from Sanders v. Mississippi State Bar Ass'n, 466 So.2d 891, 893 (Miss.), cert. denied, 474 U.S. 844, 106 S. Ct. 133, 88 L.Ed.2d 109 (1985): '  ‘Lawyer insensitivity to ethical impropriety [or perceived ethical impropriety] is one of the primary sources of this lack of public confidence in the Bar. The problem is exacerbated when ethical violations are committed by an attorney holding an important public office.’’  And in Syllabus Point 3 of Roark, we stated: "Ethical violations by a lawyer holding a public office are viewed as more egregious because of the betrayal of the public trust attached to the office."  (citations omitted.)

Appellate Decisions

• State v. Boyd, 160 W.Va. 234, 233 S.E.2d 710, 717 (1977). “This Court has uniformly held that a prosecuting attorney occupies a quasi-judicial position in the trial of a criminal case. In keeping with this position, he is required to avoid the role of a partisan, eager to convict, and must deal fairly with the accused as well as the other participants in the trial. It is the prosecutor's duty to set a tone of fairness and impartiality, and while he may and should vigorously pursue the State's case, in so doing he must not abandon the quasi-judicial role with which he is cloaked under the law…. As a corollary to this rule, the Court has also recognized that the standard of fair and impartial presentation required of the prosecutor may become more elevated when the offense charged is of a serious or revolting nature, as it is recognized that a jury in this type of case may be more easily inflamed against the defendant by the very nature of the crime charged.”

WISCONSIN

Ethics Advisory Opinions

• WI (1965-1) District Attorney prohibited from representing client whose land is taken in condemnation proceedings through highway commission.
• WI (1975-17) Full-time district attorney may not also work in private practice.
• WI (1979-08) Where local ordinance incorporates state statute, neither district attorney nor his partner should defend ordinance violation.
• WI (1980-03) Attorney may not accept employment as special prosecutor if he knows or it is obvious that he may be called as witness.
• WI (1981-03) Part-time town attorney charged with duty of prosecuting violations of town ordinances may defend client in prosecutions brought by municipalities other than municipality represented by town attorney.
• WI (1981-05) Lawyer appointed by court to act as district attorney pro tempore may not also act as defense counsel in criminal matters in that county.
• WI (1983-13) Attorney may contact opposing party’s expert witness, including treating medical doctors, without permission of opposing counsel.
• WI (1984-15) Prosecutor may not contact represented person even though it is not formal proceeding.
• WI (1984-16) County assistant district attorney may serve as member of community board of directors while simultaneously regularly representing interest of public.
• WI (86-01) Where district attorney’s spouse is deputy sheriff in same county, there is no reason for attorney to treat cases investigated by spouse in different manner.
• WI (1986-07) Unprofessional for prosecutor to discourage or obstruct witness from talking to defense attorney.
• WI (1986-08) District Attorney’s former substantial or total responsibility for representing persons in matters still pending involving that attorney’s office requires disqualification of office.
• WI (1986-15) Lawyers who take positions at district attorneys office (after practicing defense work) must disclose all information to firm and district attorneys office and are disqualified from working on all matters accepted by former firm prior to departure.
• WI (1986-17) Prosecutor does not necessarily have to seek or recommend appointment of special prosecutor to eliminate possible appeal of sentence based on allegations of prosecutorial vindictiveness if defendant is convicted.
• WI (1986-18) District Attorney can prosecute cases assigned to public defender’s office prior to their resignation from same office only when they had no actual knowledge of case.
• WI (1991-06) Opinion addresses whether lawyer may ethically communicate about subject of representation with party, in civil or criminal matter, that government lawyer knows to be represented by another lawyer in that matter, without other lawyer’s consent or knowledge.
• WI (1992-06) Lawyer may, before any court appearance has taken place and before defense counsel has been requested, retained or appointed, ethically meet with criminal defendant, ask questions and discuss charge.
• WI (1993-03) Prosecutor can ethically discuss unrepresented criminal defendant’s case with defendant after formal criminal prosecution has been commenced by filing and service of criminal summons and complaint, but before first court appearance.
• WI (1994-05) May an attorney record statements made over telephone without disclosing to persons concerned that their statements are being recorded and without securing consent to do so.
• WI (1996-03) In representing client, lawyer shall not communicate about subject of representation with party lawyer knows to be represented by another lawyer in matter.
• WI (2000-02) Lawyers are not prohibited from sharing office space, support staff, or equipment with either another lawyer or nonlawyer provided adequate protection is taken to protect clients’ interests.

Attorney Disciplinary Opinions

• In re Disciplinary Proceedings Against Kremkoski, 277 Wis. 2d 83, 690 N.W.2d 430 (2004).  Attorney disciplined for obtaining DV protective order for one client and representing another charged with violating same order.
• In re Disciplinary Proceedings Against Dumke, 248 Wis. 2d 704, 635 N.W.2d 594 (2001).  Attorney disciplined for failure to provide competent representation in sexually violent predator proceeding.
• In re Disciplinary Proceedings Against Lucareli, 235 Wis. 2d 557, 611 N.W.2d 754 (2000).  Prosecutor does not violate disciplinary rule against filing charge not based upon probable cause unless he has actual knowledge that no probable cause exists.
• Matter of Disciplinary Proceedings Against Blask, 216 Wis. 2d 129, 573 N.W.2d 835 (1998).  Former District Attorney publicly reprimanded for, during time serving as District Attorney, engaging in two physical confrontations, one with elderly man leaving probate court and other with referee at high school basketball game, after which he behaved dishonestly when dealing with police.
• Matter of Disciplinary Proceedings Against Donovan, 211 Wis. 2d 451, 564 N.W.2d 772 (1997).  Assistant City prosecutor suspended for six months for referring friend’s criminal charge for diversion when he was not eligible, for forging certificate of completion of diversion program for friend, for forging ex-boyfriend’s name to letter requesting jury trial on criminal charge, and for dismissing criminal charge against ex-boyfriend.
• Matter of Disciplinary Proceedings Against Penn, 201 Wis. 2d 405, 548 N.W.2d 526 (1996).  County attorney suspended for prosecution of persons with whom he had personally used illegal drugs thereby creating conflict of interest.
• Matter of Disciplinary Proceedings Against Sanders, 173 Wis. 2d 609, 494 N.W.2d 430 (1993).  Prosecutor’s misrepresentations to court that, in one case, case had been resolved in order to have case removed from trial calendar and, in second case, about jail’s policy on work release and opinion of jail personnel as to whether defendant should receive work release resulted in 60-day suspension.
• Matter of Disciplinary Proceedings Against Lindberg, 173 Wis. 2d 588, 494 N.W.2d 421 (1993).  Prosecutor disciplined for failure to file journal entries in numerous cases and for failure to make good faith effort to locate victim of crime for preliminary hearing.
• In the Matter of Disciplinary Proceedings against Dumke, 171 Wis.2d 47, 489 N.W.2d 919 (1992).  Former prosecutor suspended for six months based, in part, upon communication with represented defendant without knowledge or consent of defense counsel.

Appellate Decisions

WYOMING

Ethics Advisory Opinions

Attorney Disciplinary Opinions

• Mendicino v. Whitchurch, 565 P.2d 460 (Wyo. 1977).  Attorney suspended for, inter alia, preparing and filing affidavit for client stating she was surviving spouse of man killed in accident when he had finalized woman’s divorce from deceased three weeks earlier.  Rejecting attorney’s assertion that he thought parties may have remarried, Court stated

  We find respondent's improper behavior … [has been] clearly established and his excuse therefor lame and unacceptable.  Even the newly admitted lawyer advising his first client on his first day in practice must know that perjury is one of the most reprehensible of legal crimes and that he who assists in the perpetration thereof is equally guilty with the one he assists.  He must therefore not only scrupulously avoid participation of any kind in committing the fraudulent act, but must guard his uninformed client against conduct that could lead to criminal charges.  If a client is to swear to an affidavit or testify under oath, the attorney's first obligation is to make sure that he does not through ignorance or misinterpretation give false testimony or even inadvertently misrepresent the facts.  To that end the canons forbid the attorney to counsel or assist his client in conduct that the lawyer knows to be illegal or fraudulent.  Respondent was present when Mrs. Kaiser testified, not that she and her husband had remarried, but that they never had been divorced.  However mistaken Mrs. Kaiser might have been in this view, it was respondent's clear and unavoidable duty to set the record straight in this regard.  If he had basis to believe that the parties had remarried prior to the death, he could properly present that basis for the claim, but he could under no circumstances properly sit back and let his client give a false interpretation of what had happened.  It taxes credulity to ask this court to believe that had he carefully considered the question and gone into the matter with Mrs. Kaiser he would not have remembered the conversation and what steps he took to assure himself that he was not putting his client into a false if not downright fraudulent position.  His assumption of remarriage is then immaterial to the charge, and he has been guilty of failure to represent the best interests of a client in an honest and truthful way.  This conduct is violative of DR7-102 in several respects and even if it resulted from negligence rather than evil intent, is completely devoid of exoneration because it represents such a material failure to function as a counselor to his client.

  (footnote omitted).  Id. at 565 P.2d 477-78.

• State Board of Law Examiners v. Sheldon, 43 Wyo. 532, 7 P.2d 226 (1932).  Attorney disbarred for telling his client that he was charged with assault to commit rape and charging client $1,500.00 to “pay off cops and prosecutor” to get charge dismissed when client was actually only detained as witness and was scheduled to be released following morning.  Wyoming court quoted Illinois Supreme Court as follows:

  "The lawyer assumes high duties, and has imposed upon him grave responsibilities.  He may be the means of much good or much mischief.  Interests of vast magnitude are entrusted to him; confidence is reposed in him; life, liberty, character and property should be protected by him. He should guard, with jealous watchfulness, his own reputation, as well as that of his profession.  The defendant has neglected his duties, betrayed confidence, practiced deceit, and turned recreant to virtue.  He has not alone degraded himself – he has tarnished the fair fame of a profession always esteemed honorable."

  (citations omitted).  Id., 7 P.2d at 227.

Appellate Decisions

FEDERAL COURTS

• Grievance Committee for the Southern District of New York v. Simels, 48 F.3d 640 (2d Cir. 1995).  Committee on Grievances for Southern District of New York imposed sanction of censure upon Simels for violating Disciplinary Rule 7-104(A)(1) of the American Bar Association's Code of Professional Responsibility (predecessor of current Rule 4.2, MRPC) by contacting individual, whom Simels knew (1) to be represented by counsel on charge he participated in attempted murder of government witness in drug conspiracy trial in which Simels' client was defendant, (2) had agreed to cooperate with government, and (3) had implicated Simels' client in the shooting.  Prior to Simels' contact with individual, prosecution had informed Simels and his client that it would be filing complaint against individual and two other codefendants in connection with attempted murder of government witness (so that soon Simels’ client and individual would be facing similar charges in same case).  Court of Appeals, disagreeing with Committee’s interpretation of Rule 7-104(A)(1), found that Simels, in interviewing individual, was not interviewing “party” in “same matter,” but rather interviewing potential witness in drug conspiracy case and potential codefendant of his client in related but distinct matter, i.e., attempted murder of witness.  Censure was lifted.  Court also, noting that requiring federal courts to follow various and often conflicting state court and bar association interpretations of disciplinary rules threatened to “balkanize” federal law, held that interpretation of DR 7-104(A)(1), in federal criminal context was matter of federal law.
• Genzler v. Longanbach, 384 F.3d 1092 (9th Cir. 2004). Assistant DA and DA Investigator are entitled only to qualified immunity from 1983 action in situation where they participated in investigation of criminal activity at time before probable cause had been established.
• KRL v. Moore, 384 F.3d 1105 (9th Cir. 2004). Prosecutor entitled to absolute immunity for conduct relating to post-indictment search pursuant to warrant seeking evidence of charged crime. Only qualified immunity was available for search for evidence of uncharged crime.
• In re Colton Fontan, 28 P.R. Offic. Trans. 1 (Feb 21, 1991).  Group of prosecutors received varying degrees of discipline for reckless and gross negligence in investigation of killing by police officers of two criminals who had participated in various acts of terrorism.
• In re Hurley, 215 B.R. 391, 393 (Bankr. 8th Cir. 1997).  “One of the purposes of the ethical rules restricting attorney contact with represented parties is to protect persons from ‘the danger that 'unprincipled attorneys' might 'exploit the disparity in legal skills between attorneys and lay people'....’. Such purpose is not served unless an attorney is involved.”  (citations omitted).  The Court reiterated that Rule 4.2 does not apply to non-lawyers.