Monday, February 4, 2008

Accuse At Your Own Risk

An attorney who served as trial defense counsel in a criminal matter alleging two counts of custodial interference was alleged to have violated several ethics rules. His client was cross-examined by the state concerning an email between her and her former attorney. After the client was acquitted, the attorney moved for the trial court to conduct an inquiry into how the state had obtained and may have altered the document, asserting that the conduct violated the attorney-client privilege. The prosecutor filed an affidavit "asserting that he had received [the document] in its redacted version from [the client's] former husband..."

The trial court held that any privilege claim had been waived and that there was no valid basis to accuse the prosecutor of misconduct. The trial court found that the defense attorney had violated Rules of Professional Conduct 1.2, 3.1, 3.3 and 8.4. The Connecticut Appellate Court upheld the findings that the attorney violated Rules 3.1 and 3.3 but not 1.2 and 8.4. The court remanded for further proceedings on sanction in light of its conclusions.

The court states:

"Part of the plaintiff's original motion reasonably can be read to have implied that the state's attorney's office might have run afoul of legal and ethical norms. The plaintiff never presented a factual basis for a reasonable belief that a government entity had altered the email. Furthermore, when the prosecutor furnished the court an affidavit unequivocally disclaiming any role in the alteration of [the exhibit], the plaintiff immediately should have withdrawn any semblance of a claim...and he failed to do so."

The court concedes that the prosecutor had unknowingly submitted an altered document into evidence which, but for the client having kept a copy of the communication, could have caused a result contrary to justice: "[a]n attorney who, even inartfully, brings the introduction of an altered document to the attention of a court performs a service for the integrity of the judiciary." The Rule 1.2 and 8.4 violations were not sustained as a result.

A dissent in part would find the Rule 8.4 violation.

This case merits a close look. If it stands for the proposition that a claim of prosecutorial misconduct must be dropped in the face of the prosecutor's affidavit denying misconduct, I'd be concerned. (Mike Frisch)

Bar Discipline & Process | Permalink

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