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An Easier Route to Disqualification of Prosecutors

Antonio R. Sarabia II July 11, 2023

AppRecusal (disqualification) of a prosecutor’s office requires clear and con- vincing evidence of inten-tional withholding of exculpator y information or evidence. Another route is to prove a likelihood of unfair treatment. Both approaches are difficult and rarely successful. The 2018 Rules of Professional Con-duct open another avenue to recusal,which is easier. The Rules require prosecutors to provide written no-tice to crime victims under certain circumstances. This is usually not done. Under the Rules, when there is failure to comply, the entire pros-ecutor’s office must be recused.

Rule of Professional Conduct 1.18(a) provides that “[a] person who ... consults a lawyer for the purpose of ... securing ... advice from the lawyer in the lawyer’s pro-fessional capacity, is a prospective client.” Victims who ask a prosecutor about court proceedings, strategy, or discover y are prospective clients. To be a prospective client, one must have a good faith intention to seek legal advice. Comment 2 to Rule 1.18. Including crime victims within the scope of Rule 1.18(a) is not dependent on a victim’s belief that the prosecutor represents them.

Nevertheless, it is common for victims to believe that prosecutors represent them. Prosecutors help victims, guide them through the criminal legal system, advise them and act against the person who hurt them. Victims may assume since they are simply one of the People in the case caption, they must be represented by prosecutors.

Rule 1.18(b) explains that it applies even when the lawyer never forms an attorney client relationship with the prospective client. Rule 1.18(c) provides the standards for lawyers who give legal advice to a prospec-tive client in a matter in which they have a current client. Since victims qualify as prospective clients, Rule 1.18(c) applies to prosecutors. It has four criteria. First, whether the interests of the client (the People) and the prospective client (the victim)are “materially adverse.” Second, does the information from the pro-spective client pertain to the same matter (or a substantially related matter) as the lawyer’s current representation of his client? Third, whether the lawyer received con-fidential information (as defined in Business and Professions Code section 6068(e)(1)) from the pro-spective client. Fourth, whether theinformation received from the pro-spective client is material to the case.

The first requirement of Rule 1.18(c) is that the client (the People) and the prospective client (victim) have “materially adverse” interests in the same matter. American Bar Association Formal Opinion 497 (Feb. 10, 2021; section II, first paragraph) explains that “’material adverseness’ includes, but is not limited to, matters where the law-yer is directly adverse on the same or a substantially related matter.” The second prong is met because crime victims and the People are both involved in the same criminal case.

As to the first prong, the ABA defines “materially adverse” as “directly adverse.” Comment 1 to Rule of Professional Conduct 1.7 explains “directly adverse.” “A di-rectly adverse conflict under para-graph (a) can arise in a number of ways, for example, when: (i) a law-yer accepts representation of more than one client in a matter in which the interests of the clients actually conflict ...” The test for material adversity is whether there are con-flicts of interest between the victim and the People.

Conflicts between the People and victims are common. There are possible serious conflicts at virtu-ally ever y stage of a criminal case. At the charging stage, a crime victim may want more serious charges (with longer possible incarceration) than the People choose. At the pre-liminar y hearing, a victim may not want to testify, but the prosecutor may insist on that testimony. At the discover y stage in an abuse case the People may want the victim to provide all the medical records the defense has subpoenaed, but the victim may want to protect their privacy and only produce some re-cords. At trial, a victim may want to testify about events which the prosecutor may think will weaken the case. At sentencing, a victim may want jail time, while the People recommend probation.

These conflicts involve the duty of loyalty. “[W]hen the potentially conflicting parties are simultane-ously represented by the same attorney, [t]he primar y value at stake ... is the attorney’s duty – and the client’s legitimate expec-tation—of loyalty ...” Metro-Goldwyn-Mayer, Inc. v. Tracinda Corp. (1995) 36 Cal.App.4th 1832, 1839. “An at-torney’s duty of loyalty to a client is not one that is capable of being divided . . .” Great Lakes Construction, Inc. v. Burman (2010) 186 Cal.App.4th1347, 1355. There are often serious conflicts between the interests of prosecutors and victims which rise to the level of materially adverse.

Applying the third criteria of Rule 1.18(c), victims frequently share confidential information with pros-ecutors about the crime. For ex-ample, a victim may disclose that she was hiding in the closet when her father was shot in the living room. (A family member is also a crime victim, Cal. Const. Art I, sec-tion 28(e)). At the time of disclo-sure, this information is not public, is not known to the court and is not known to the defense. This disclosure is a secret under Busi-ness and Professions Code section 6068(e)(1).

Continuing the example of the victim who hid in the closet and heard the crime, the information provided to the prosecutor is ma-terial to the case. It is common for victims to share important infor-mation about a case with prose-cutors. This is the fourth and final criterion of Rule 1.18(c).

Once the four criteria have been met, Rule 1.18(d)(2)(ii) requires written notice to the victim so the victim can determine if the prose-cutor has complied with Rule 1.18. Rule 1.18 (d)(2)(i) requires that the individual prosecutor must stop his or her participation in the case. Neither of these two steps are commonly taken by prosecutors. Failing to provide written notice leads to a serious consequence. The entire prosecutor’s office must withdraw. Section 1.18(c) states that the required resignation applies to the entire “law firm.” As defined in Rule 1.01(c), the “law firm” is the prosecutor’s office (such as the county district attorney). The continued representation of the People by the district attorney is a violation of 1.18(c). Both the indi-vidual prosecutor and the district attorney’s office will have violated the Rules of Professional Conduct. This is consistent with Rule 5.1. That rule requires super vising at-torneys, such as district attorneys, to ensure that attorneys in their office comply with the Rules of Professional Conduct. The failure to institute office wide compliance can result in office wide disquali-fication.

There is no exclusion in Rule 1.18 for prosecutors. There is nothing in the three comments to the Rule excluding prosecutors from its reach. Rule 1.0(a) is clear that the Rules apply to all lawyers. Since prosecutors are within the reach of the rule, the next issue is whether there are any defenses against application of Rule 1.18. One possible defense is that no reasonable person could believe a prosecutor represents them. After all, prosecutors are employees of a county or city and do not take other clients. Therefore, since no crime victim could have a reason-able belief that a prosecutor might represent them, the victim is not a prospective client and there is no violation of Rule 1.18.

There are three answers to this position. First, the Rule does not include a reasonable belief in the representation requirement. Rule 1.18 is based on the content of communications between the pro-spective client and the lawyer. The requirement that a victim have a reasonable expectation of repre-sentation is not in the Rule. Com-ment 2 explains that prospective clients only need a reasonable ex-pectation that the lawyer will pro-vide legal advice. Comment 2 also explains that the Rule may not ap-ply to unilateral communication, such as when a prospective client approaches a lawyer and starts divulging information. But victims and prosecutors have two-way com-munication during which the pros-ecutors elicit information. Bilateral communication is another indica-tion that the Rule applies. Neither the text of the Rule nor the Com-ments support a defense against the application of Rule 1.18 based on a lack of an objectively reason-able expectation of representation. This makes sense because the focus of the Rule is on communication of information which may be inap-propriately used.

Second, the average person does not know whether a prosecutor can take other clients. Some pros-ecutors work part time and can and do represent private clients. A crime victim cannot be expected to know whether a prosecutor takes private clients or not. A victim could have a reasonable expectation of representation. Prosecutors who wish to rely on their unavailability to represent victims as a defense to Rule 1.18 must communicate that when the prosecutor and victim first meet. Once the victim shares confidential information it is too late.

The third reason a reasonable belief standard would not matter lies in the relationship between pro-secutors and victims. Prosecutors advise victims on substantive law (what must be proved for there to be a conviction) and procedural law (the timing and relative impor-tance of hearings). Prosecutors act against the person who harmed the victim. Prosecutors often help vic-tims recover their losses (restitution).Victims confide in prosecutors. The victim/prosecutor relationship has the hallmarks of an attorney-client relationship: legal advice, legal ac-tion against the person who caused the harm, recover y of losses and confidential communication. A crimevictim could have a reasonable be-lief that the prosecutor represents them because of these hallmarks.

Another possible defense against the application of Rule 1.18 to pros-ecutors is that defendants do not have the right (standing) to disqua-lify prosecutors based on the pro-secutor’s ethical mistake as to a victim. Penal Code section 1424 (a)(1) provides that defendants may move “to disqualify a district attorney from performing an auth-orized duty.” This section esta-blishes standing under California criminal procedure.

There is a second independent basis for a defendant’s standing to disqualify a prosecutor for un-ethical behavior. Hassett v. Olson (2022) 78 Cal.App.5th 866, addressed whether a party who was neither the client nor the former client had standing to move to disqualify counsel for a violation of a Rule of Professional Conduct. Both stand-ing and disqualification were af-firmed. The Court explained: “[i]t makes no sense for a court to stand idly by and permit conflict-ed counsel to participate in a case merely because neither a client nor former client [nor party to a former proceeding] has brought a motion. [T]he court has an inde-pendent interest in ensuring trials are conducted within ethical stan-dards of the profession and that legal proceedings appear fair to all that obser ve them.” Id at 873.

Penal Code section 1424 pro-vides the procedure for recusal of prosecutors. It specifies the motion timing and ser vice. These require-ments could apply to motions un-der Rule of Professional Conduct 1.18. Section 1424 also has standardsfor recusal. One question is whethersection 1424 is the exclusive means of recusal, a third possible defense against the application of Rule 1.18 to prosecutors. Subsection (a)(1) provides “[t]he motion may not be granted unless the evidence shows that a conflict of interest exists that would render it unlikely that the defendant would receive a fair trial.” This text may be read two ways. First, that it summarizes the basis for recusal under the sub-stantive standard in section 1424. The second possible reading is that section 1424 is the exclusive stan-dard for prosecutor recusal. Under the latter interpretation, Rule 1.18 would not apply to prosecutors.

One problem with the second interpretation is that Rule 1.0(a) states that the Rules of Professional Conduct apply to all lawyers. This means that the failure of prosecu-tors to comply with a Rule of Pro-fessional Conduct provides a secondroute to disqualification of prose-cutors. This might be a conflict between the second interpretation of section 1424(a)(1) and the Rules of Professional Conduct.

Application of the rules of statu-tor y interpretation avoids the con-flict. “[W]e must reconcile statutes and seek to avoid interpretations which would require us to ignore one statute or the other . . .” Fuentes v. Workers’ Comp. Appeals Bd. (1976) 16 Cal.3d 1, 7. Fuentes re-quires that reconciliation be tried when two rules of law appear to conflict. This can readily be done. The Rules of Professional Conduct add a new basis for disqualification of prosecutors. That interpretation does not annul section 1424, con-tinues its basis for disqualification and allows use of its motion proce-dures.

This approach is also consistent with the presumption that when new rules or laws are passed, the body enacting them is aware of the existing laws. “[W]e must as-sume that when passing a statute the Legislature is aware of existing related laws and intends to main-tain a consistent body of rules.” Id. When the California Supreme Court approved the Rules of Pro-fessional conduct in 2018, it was aware of existing laws, such as Penal Code section 1424 – which went into effect in 1980. Lack of standing is not an effective defense to the application of Rule 1.18 to prosecutors.

A key problem for prosecutors is their failure to give written notice to victims under Rule 1.18(d)(ii). This is similar to another serious omission by prosecutors. For more than a dozen years most prosecu-tors have violated the requirement that they give written notice to vic-tims of their right to counsel. Penal Code section 679.026(b) states: “[e]ver y victim of crime has the right to receive without cost or charge a list of the rights of victims of crime recognized in Section 28 of Article I of the California Con-stitution.” The victim’s right to counsel is in Section 28(c)(1). The reference to “list” means that the information must be in writing. Penal Code 679.026(c)(1) specifies that prosecutors must communi-cate this right to victims. This is generally not done.There is a simple solution to both problems. At their first meet-ing, prosecutors could give victims a short letter explaining that the victim has a right to counsel and that the prosecutor does not rep-resent them. This would comply with the Penal Code and prevent a Rule 1.18 problem by ensuring that the victim knows they are not a prospective client. Until prosecu-tors implement this simple solu-tion, their office is fair game for motions to recuse.

There are important differences between recusal under Penal Code section 1424 and Rule of Profes-sional Conduct 1.18. Under the Penal Code, the bar is ver y high. “[A] defendant has the burden of show-ing by evidence that (1) a conflict of interest actually exists and (2) the level of conflict is so high that it is unlikely that the defendant would receive a fair trial.” People v. Pierce (2019) 38 Cal.App.5th 321, 342. While Rule 1.18 has its own criteria, once they are met disqual-ification of the entire prosecutor’s office is required, without regard to whether the trial may be fair.

A second point is that the stan-dards of section 1424 rely more heavily upon the discretion of the trial court. In contrast, a critical element of Rule 1.18 is whether a written notice was provided to the victim. That is a black and white matter.

A third point of difference, and most important, is that facts sup-porting recusal under the standardsof section 1424 are ver y rare. But facts supporting recusal under Rule1.18 are not only common, but pro-bably predominant in cases with victims.

When disqualification of a dis-trict attorney’s office is ordered, the case is referred to the Attorney General. The Attorney General may or may not take the case. The Attorney General may also drop certain charges or defendants. Fromthe defense standpoint, a successfuldisqualification of an entire district attorney’s office is a significant win and can lead to dismissal of the case. The Rules of Professional Con-duct open another avenue to this powerful strategy.