VSB Council urges beefed-up ethics rule for prosecutors

The Virginia State Bar Council says a prosecutor has an ethical duty to point out any known exculpatory evidence in a large document dump in a criminal case. Bar leaders are urging the Supreme Court of Virginia to make that duty clear with language in lawyers’ ethics rules.

The added language is designed to address a “needle in a haystack” situation when a prosecutor turns over voluminous information in a criminal case. A comment to Rule 3.8 of the Rules of Professional Conduct would tell prosecutors they must disclose any particular exculpatory evidence in the package if they know of such evidence.

The VSB governing body on Feb. 23 recommended the change by a vote of 47-13 over objections of prosecutors who opposed the draft comment produced by the bar’s ethics committee.

The rulemaking process was sparked by a complaint that a prosecutor had failed to disclose a single favorable dialogue in a 200-hour batch of jailhouse phone recordings produced in a criminal case.

As approved by the Bar Council, the rule comment would state: “Once the prosecutor knows particular evidence is exculpatory, the prosecutor must timely identify and disclose that evidence.”

The language approved on a Saturday gathering at Richmond’s Omni Hotel was opposed by representatives of Virginia prosecutors, including Bar Council member C. Phillips Ferguson, the Suffolk commonwealth’s attorney.

Ferguson said production of a batch of information was equivalent to disclosure of any exculpatory information contained in the batch. He urged the bar to make the proposed comment aspirational only.

Earlier, Michael R. Doucette – executive director of the Virginia Association of Commonwealth’s Attorneys – criticized the vague wording of the ethics committee’s proposal.

“It is so watered down, I have absolutely no idea what it means,” Doucette said. “We’re inviting all sorts of disciplinary litigation, and we’re going to swamp bar counsel with this.

But Eric M. Page, chair of the VSB Standing Committee on Legal Ethics, pressed for approval of the rule comment.

“Every prosecutor who has weighed in on this, especially the ones who attended our meetings, agreed unequivocally that it would be unethical to hide a needle in a haystack. It is inconceivable to me why this simple and clear comment cannot be embraced by prosecutors,” Page said.

Resistance came from the other direction at one point in the meeting. Criminal defense litigator John K. Zwerling said the proposed comment language was “weak and wishy-washy.”

“I have seen some awful things in the last three years,” Zwerling said, referring to allegations of prosecutorial misconduct.

The Bar Council strengthened the comment language after the discussion. Removed were three sentences explaining that sufficient disclosure is dependent on circumstances, without offering examples. The operative sentence was modified to say that whatever particular evidence is deemed exculpatory must be timely disclosed.

The proposed comment goes to the Supreme Court of Virginia for consideration.

Surprise disclosure rule

Bar leaders decided to give the ethics committee more time to consider proposed rule changes to address the duties of a lawyer who receives privileged information that was inadvertently sent.

The ethics committee sought to codify the guidance now found in Legal Ethics Opinion 1702. A proposed new paragraph (b) in Rule 4.4 would require that a lawyer who receives information relating to the representation of the lawyer’s client and who knows that the information is privileged and was inadvertently sent must immediately halt review or use of the information, promptly notify the sender, and follow the sender’s instructions, if applicable, to return or destroy the information.

The lawyer receiving the inadvertent communication would be barred from telling the client about it if the sender so instructs. The proposed language is based on the assumption that the importance of preserving lawyer-client confidences outweighs the lawyer’s duty to communicate with his client.

Bar Council member William M. Moffet of Abingdon said he once received an inadvertent disclosure of privileged information from a third party that indicated the adversary was perpetrating a fraud on the tribunal. He suggested the rule should include an exception when it appears there is fraud.

Page invited a motion to refer the proposed rule change back to the ethics committee for consideration of the fraud issue, which the Council approved on a voice vote.

Unauthorized practice rules

The Bar Council unanimously recommended the Supreme Court approve a rewrite of the rules on the Unauthorized Practice of Law. A special committee retooled the UPL rules to make them easier to follow, Page explained. Outdated language and repetitive portions were eliminated, a report said.

The attorney general’s office reviewed the project and declared it free of any unreasonable competitive restraint.

The Bar Council added language to make it clear that legal aid paralegals can handle administrative legal proceedings as permitted by the tribunal.

While some attorneys and advocates who handle special education cases raised concerns about the role of lay advocates in school litigation, the bar’s UPL rule rewrite made no changes regarding lay advocates. The exception allowing them to serve as representatives of parents and students remains intact in the proposed UPL rules.