Tuesday, October 21, 2008

Labels Are Dispositive

The Vermont Professional Responsibility Board has admonished an unnamed deputy state's attorney for making a frivolous statement to a court in violation of Rule 3.1. The issue before the court relating to the timing of a request to the police of discovery sought by defense counsel. When pressed, the prosecutor "spoke as if his file contained a letter documenting the date that his office forwarded to (sic) original discovery request to the police department. In fact, the file contained no such letter."

The admonition states that the prosecutor did not intend to mislead the court or opposing counsel. Rather, "his response was based on his understanding of office practices not on documentation in his file."

Terminology is important here. The disposition characterizes the assertions as "frivolous" but not as knowing falsehoods (Rule 8.4) or false representations to a tribunal (Rule 3.3). Thus, the prosecutor escapes more serious sanctions and the disclosure of his identity to the public. (Mike Frisch)


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This is a fudge. Clearly, the prosecutor *did* intend to mislead. That's why he was disiplined. There was nothing whatsoever frivolous about what he said. It was clearly relevant.


Posted by: FixedWing | Oct 21, 2008 10:17:02 AM

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