Tuesday, January 2, 2007

Prosecuting Prosecutors

The charges filed by the North Carolina Bar against the prosecutor in the Duke lacrosse case are unusual but not unprecedented. The Maryland Court of Appeals reprimanded the States Attorney of Montgomery County for violating Rule 3.6 a few years ago (here). North Carolina has adopted the ABA Model Rule verbatim, with an additional provision that permits the lawyer to reply to charges of misconduct publicly made against the lawyer (North Carolina Rule 3.6(e)). Although I have not yet seen the charges, either withholding or misrepresenting evidence might be a basis to charge a Rule 3.8 or 8.4 allegation, for which there is more precedent.

It is quite unusual to see the Bar initiate charges while the criminal case is still pending rather than to defer action until that process has run its course. With respect to the improper pretrial publicity allegations, it will be interesting to see if the DA invokes "fair reply" as a defense to his media approach as a result of publicity generated from the defense side.

My own experience with prosecuting prosecutors suggests that, as a general proposition, courts and bars are quite reluctant to sanction alleged misconduct by these guardians of justice. It will be worth following this bar case as it may educate the public about bar discipline in general and prosecutor's ethical obligations in particular. It is also worth noting that the key Gentile precedent (501 U.S. 1030) was a 5-4 cobbling of opinions by Chief Justice Rehnquist and Justice Kennedy, with Justice O'Connor's concurring vote creating the majority. Trial publicity and the "lawyer as commentator" industry has come a long way since Gentile and perhaps this case will examine the lawyer's ethical obligations in these high profile, intense publicity cases.

P.S. The lawyer reprimanded in Maryland survived the embarrassment and was elected as Attorney General of the state last November. Maybe all publicity is good publicity.  [Mike Frisch]


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