Following is the 73rd post in a series from Parker Law Group about recent changes to the California Bar Association (CBA)’s Rules of Professional Conduct (RPC). This rule is found in Chapter 3 – “Advocate,” addressing the responsibilities of a criminal prosecutor.
This Rule of Professional Conduct, as revised, is as follows:
Rule 3.8 Special Responsibilities of a Prosecutor
The prosecutor in a criminal case shall:
(a) not institute or continue to prosecute a charge that the prosecutor knows is not supported by probable cause;
(b) make reasonable efforts to assure that the accused has been advised of the right to, and the procedure for obtaining, counsel and has been given reasonable opportunity to obtain counsel;
(c) not seek to obtain from an unrepresented accused a waiver of important pretrial rights unless the tribunal has approved the appearance of the accused in propria persona;
(d) make timely disclosure to the defense of all evidence or information known to the prosecutor that the prosecutor knows or reasonably should know tends to negate the guilt of the accused, mitigate the offense, or mitigate the sentence, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal; and
(e) exercise reasonable care to prevent persons under the supervision or direction of the prosecutor, including investigators, law enforcement personnel, employees or other persons assisting or associated with the prosecutor in a criminal case from making an extrajudicial statement that the prosecutor would be prohibited from making under rule 3.6.
(f) When a prosecutor knows of new, credible and material evidence creating a reasonable likelihood that a convicted defendant did not commit an offense of which the defendant was convicted, the prosecutor shall:
(1) promptly disclose that evidence to an appropriate court or authority, and
(2) if the conviction was obtained in the prosecutor’s jurisdiction,
(i) promptly disclose that evidence to the defendant unless a court authorizes delay, and
(ii) undertake further investigation, or make reasonable efforts to cause an investigation, to determine whether the defendant was convicted of an offense that the defendant did not commit.
(g) When a prosecutor knows of clear and convincing evidence establishing that a defendant in the prosecutor’s jurisdiction was convicted of an offense that the defendant did not commit, the prosecutor shall seek to remedy the conviction.
The wording found in Rule 3.8 of the CBA’s revised RPC, as set forth above, is virtually identical to the wording in Rule 5-110 of the CBA’s previous RPC. The one obvious difference is the rule number referred to at the end of subdivision (e), mentioning “an extrajudicial statement that the prosecutor would be prohibited from making under rule 3.6.” In the old rule, this read “… under rule 5-120.” The title of both rules is “Trial Publicity.”
The rule corresponding to CBA’s Rule 3.8 in the American Bar Association (ABA)’s Model RPC (Rule 3.8) does not match the CBA rule as closely as several other ABA rules do. The ABA rule has subdivisions (a) through (h), while the CBA’s rule only goes through (g). In CBA’s revised rule, subd. (a) starts out with “not institute or continue to prosecute,” while subd. (a) in the ABA rule says “refrain from prosecuting.” Subd. (c) ends with the phrase “such as the right to a preliminary hearing” instead of CBA’s phrase about the “appearance of the accused in propria persona.” Subd. (d) contains the same content, but slightly reworded. And CBA’s subds. (e)-(g) match ABA’s subds. (f)-(h).
The one major difference between the ABA and the CBA rules is ABA’s subd. (e), shown below:
(e) not subpoena a lawyer in a grand jury or other criminal proceeding to present evidence about a past or present client unless the prosecutor reasonably believes:
(1) the information sought is not protected from disclosure by any applicable privilege;
(2) the evidence sought is essential to the successful completion of an ongoing investigation or prosecution; and
(3) there is no other feasible alternative to obtain the information;
This content is absent from the CBA’s revised rule.
Benefit: The fact that this rule has changed only minimally since the previous version is a good indication, generally speaking, that the State Bar of California has deemed this information to still be a helpful and valuable part of its Rules of Professional Conduct.
The information provided herein is informational only and should not be construed as legal advice or as an agreement for representation. This is not an advertisement. If you have an issue or dispute with your attorney, or are seeking advice with respect to your obligations, you should consult with an experienced attorney. Parker Law Group is a full-service litigation and transactional law firm. Mr. Parker has represented clients in professional malfeasance disputes for over 23 years. If you would like to schedule an initial consultation with Mr. Parker or his team, you can reach them at (916) 996-0400 or at firstname.lastname@example.org. (An email to the law firm requesting a consultation does not create an attorney-client relationship or any agreement for representation by the firm.)
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