Prosecutors are not exempt from the Rules of Professional Conduct.

I am a young attorney handling criminal cases and have seen the district attorney and other prosecutors in trial give statements of personal opinion and, at times, not turn over all discovery. I have also seen discovery given the morning of or during trial. I cannot think of a situation where a prosecutor has been suspended or disbarred for such misconduct. Is there an exception to the Rules of Professional Conduct?

There is no exception to the Rules of Professional Conduct for prosecutors. People who work for district attorney’s offices, attorney general’s offices or even U.S. attorney’s offices are subject to the Rules of Professional Conduct in the state in which they practice.

In fact, there is a special section that deals solely with prosecutors under Rule 3.8. Under that section: prosecutors are prohibited from prosecuting cases they know are not supported by probable cause; the prosecutor must make reasonable efforts to ensure the accused has been advised of all of his or her rights and given an opportunity to get counsel; the prosecutor must not seek to obtain from an unrepresented defendant a waiver of important pretrial rights, such as preliminary hearing rights; the prosecutor must make timely disclosure to the defense of all of the evidence known to the prosecution that negates guilt; and the prosecutor must exercise restraint when making statements that would be prejudicial to the defendant and make sure the police officer and other law enforcement don’t do so.

The American Bar Association’s Model Rules in Section 3.8(g) states that when a prosecutor knows of new credible or material evidence, creating a reasonable likelihood that a convicted defendant did not commit an offense, the prosecutor shall promptly disclose that to the appropriate court, disclose that evidence to the defendant and undertake further investigation to determine whether the defendant was convicted unfairly.

Further, under Subsection (h) of the American Bar Association rules, when a prosecutor knows of clear and convincing evidence that establishes the defendant did not commit the crime, the prosecutors seek to remedy the conviction. The Pennsylvania Supreme Court has not adopted the latter two sections. But Pennsylvania’s rules clearly indicates in Comment 1 to Rule 3.8, the prosecutor has “the responsibility of a minister of justice and not simply that of an advocate.”

There is an interesting article in the recent Georgetown Journal of Legal Ethics, fall edition. The entire journal for this edition is devoted to ethics and prosecutors. The first article, titled “Prosecutors and Professional Regulation” by Bruce Green, discusses prosecutors’ mistrust of professional regulators. The article concludes with a note that the bench and bar have been highly deferential as our disciplinary authorities to prosecuting district attorneys and other prosecutors who act in violation of the rules.

In Pennsylvania, the disparity in treatment can be seen. For instance, if a defense attorney in a criminal case fails to timely file a brief with the Superior Court, the attorney is normally turned over to the Office of Disciplinary Counsel for prosecution, sometimes by the prosecutor’s office. Yet, if district attorneys do not timely file briefs, nothing usually happens in terms of their professional licenses.

The article in the Journal of Legal Ethics discusses the need for state courts to adopt the proposed ABA changes in the Model Rules of Professional Conduct. The emphasis is particularly on cases where there appears to be innocence of a person wrongly convicted, yet a prosecutor is not taking the appropriate steps to remedy the situation.

Some prosecutorial offices are not involved in bar association activities and sometimes appear to have a very negative attitude toward disciplinary counsel or professional regulators. But those times are changing.

If the Pennsylvania Supreme Court adopts the American Bar Association’s proposed changes to Rule 3.8, prosecutorial offices will have to clearly review matters and take steps to investigate if there are serious issues of innocence after a conviction. The days of just fighting to support the conviction without doing any investigation of new evidence will be over.

Prosecutor’s offices, like major law firms, should have an in-house ethics committee where assistant district attorneys and other office employees can go and raise ethical issues and perhaps do so on an anonymous basis. Further, it might be wise to have additional training on legal ethics in all prosecutor’s offices.

In this modern era of professional prosecutors, where an attorney can spend his or her entire life prosecuting as an assistant district attorney or a U.S. attorney, there is a great need for prosecutors to be more involved in bar associations and get to know other aspects of the bar. There is also a great need for prosecutors to take the broader view of the professional regulators to insure their offices fully comply.

To answer the question, there is no exception for prosecuting officers. But the deference long given to prosecutors by the organized bar and by disciplinary counsel has and should come to an end. Further, as noted in a recent Pennsylvania Supreme Court case, an attorney who is a prosecutor holds an office of public trust and the Pennsylvania Supreme Court has noted a violation of that duty of public trust will enhance immeasurably the nature of discipline. The days of deference appear to be coming to an end and all prosecuting officers should be aware.

Lawyers should be aware of the key differences between attorney-client privilege and the 
work-product doctrine.

What is the difference between attorney-client privilege and work-product doctrine? Does Rule of Professional Conduct 1.6 cover both?

Rule 1.6 is a very broad confidentiality rule that applies to anything pertaining to representation. It is far broader than the confidence and secrets benchmark under the common law and statutory attorney-client privilege.

The work-product rule or doctrine provides a separate but related privilege that allows an attorney to review, prepare and analyze a client’s case. This doctrine was developed to protect an attorney’s thought process as the attorney prepares a case. The work-product privilege is found in Pennsylvania Rule of Civil Procedure 4003.3. That rule prohibits the discovery of “mental impressions of a party’s attorney or his or her conclusions, opinions, memoranda, notes or summaries, legal research or legal theories.” Comment 2 to this rule notes the essential purpose to keep the file of counsel free from examination by the opponent.

In The Attorney-Client Privilege and Work-Product Doctrine in Pennsylvania by Kevin Allen, the author notes the difference between the Pennsylvania work-product doctrine and federal work-product doctrine. The author points out that “Pennsylvania’s rule of general discoverability of work product is in marked contrast to the federal work-product rule. Under Federal Rule of Civil Procedure 26(b)(3), federal work product is generally protected and cannot be discovered with very limited exceptions for hardship.”

Also, a major difference between work-product doctrine in federal court as opposed to state court is in federal court “the work product prepared in the ordinary course of business is not immune from discovery.” The author also points out that the protection of attorney work product survives the end of litigation, but non-attorney work product ends at the conclusion of the litigation. The author also points out that signed witness statements are always discoverable.

In criminal cases, the work-product doctrine is found in Pennsylvania Rule of Criminal Procedure 573(g). It prohibits disclosure to the extent that the records “contain the opinion, theories or conclusions of the attorney for the commonwealth or the attorney for the defense or members of their legal staff.”

Therefore, every attorney has to be aware of the differences and similarities between attorney-client privilege and work-product doctrine and the difference between jurisdictions and how work product is treated.

In conclusion, a wise attorney will not only be aware of the attorney-client privilege and Rule of Professional Conduct 1.6, but will also look at the case law and the appropriate rules of civil and criminal procedure that define the extent of work product in that particular jurisdiction. An attorney has an obligation to assert work-product privilege and attorney-client privilege if the attorney thinks it is appropriate during any discovery process. •

Chester County lawyer Samuel C. Stretton has practiced in the area of legal and judicial ethicsfor more than 35 years. He welcomes questions and comments from readers. If you have aquestion, call Stretton directly at 610-696-4243 or write to him at 301 S. High St. P.O. Box3231, West Chester, Pa. 19381.