Jennifer Teaford of California Appellate Law Group Jennifer Teaford of California Appellate Law Group.

Should you appeal an order that contains no error of law or fact nor any abuse of discretion? In most courts the answer is obviously no, but the decision is more complicated if the order in question is an attorney discipline recommendation. Case in point: in its most recent published case, In re Matter of Nassar, the review department agreed with a hearing judge that Orange County veteran deputy district attorney Sandra Lee Nassar committed professional misconduct by withholding evidence from a criminal defendant, and found the hearing judge had not committed any legal errors in recommending a minimum one-year suspension. But the review department has independent authority to revisit the appropriate discipline and recommended cutting Nassar’s suspension in half. Not only does Nassar provide new authority for cases involving prosecutorial misconduct, it underscores that discipline recommendations may be successfully challenged — by the attorney or the State Bar — even absent error or abuse of discretion.

In 2011, Nassar charged Carmen Iacullo and Lori Pincus with abusing Pincus’s young son. Unbeknownst to the defendants, Nassar ordered that the defendants’ mail should be intercepted while they were in custody. In July 2012, Pincus plead guilty and was released. As part of her plea agreement, Pincus signed a factual basis statement and agreed to cooperate at Iacullo’s trial.

Nassar worked the case against Iacullo until April 2013, when deputy district attorney Jennifer Duke took over as part of a routine rotation. Nassar told Duke that more than 1,000 pages of mail had been collected. When Duke asked if Nassar had produced any of the collected material, Nassar responded that she had not and asked, “Why would I?” Duke confirmed with her supervisor that the materials should have been produced in response to document requests from Iacullo’s counsel. Duke cancelled the collection and produced the materials to Iacullo.

Iacullo moved to dismiss his case based on Nassar’s suppression of exculpatory evidence. At the hearing, Nassar testified that she was familiar with her duty to produce exculpatory and mitigating information. She asserted, however, that only an October 2011 letter from Pincus to Iacullo was exculpatory, and testified that she was not required to produce even that letter since Iacullo already had it in his possession. When asked why she did not produce materials when Pincus pled guilty, Nassar said she had not finished production on the case at that point, and attempted to justify her actions as relating “to trial strategy.”

The court did not dismiss the case against Iacullo because it found Nassar’s misconduct had not amounted to a due process violation. The judge, however, found that Nassar had failed to produce “obviously exculpatory material” and ordered her removed from the case. Neither side appealed the criminal court’s ruling. Iacullo subsequently pled guilty and was sentenced to 12 years in state prison.

As for Nassar, the State Bar charged her with professional misconduct for violating her discovery and production obligations under Penal Code sections 1054.1 et. seq., and requested a sixth-month suspension.

Supervising State Bar Court Hearing Judge Yvette D. Roland found Nassar culpable. When considering the appropriate level of discipline, Judge Roland highlighted that Nassar’s grossly negligent misconduct fell “painfully below the standard of care” for a prosecutor and significantly undermined public trust in the criminal justice system. The judge was also concerned that Nassar might be vulnerable to repeating her misconduct because Nassar continued to assert that she had done nothing wrong. Judge Roland recommended a minimum one-year suspension that would last until Nassar proved to the State Bar Court that she was rehabilitated and fit to practice.

Nassar appealed. The review department agreed with Judge Roland that Nassar had failed to disclose exculpatory materials, and also largely agreed with the judge’s findings in aggravation and mitigation. Nevertheless, it declined to adopt the discipline recommendation and recommended a sixth-month suspension.

How could the review department essentially agree with Judge Roland’s findings and conclusions but lower the discipline recommendation? The standard of review explains why.

The review department affords a hearing judge’s findings great weight but is required to conduct an independent review of the record and, per California Rules of Court, rule 9.12, may “adopt findings, conclusions, and a decision or recommendation different from those of the hearing judge.”

Here, the review department and Judge Roland both found Nassar committed serious prosecutorial misconduct that fell substantially below a prosecutor’s ethical standards. Both also viewed Nassar’s misconduct to be less serious than the misconduct committed by prosecutors in two recent State Bar Court cases. In In the Matter of Field, a prosecutor was suspended for four years for misconduct committed in four separate prosecutions over a 10-year period, and in In the Matter of Murray, a prosecutor was suspended for one year for intentional misconduct in one prosecution that resulted in the dismissal of charges.

Notably, the review department found that Judge Roland applied the correct discipline standard and properly looked to Field and Murray for guidance. But pursuant to its independent review authority, the review department elected to scale Nassar’s suspension based on the relative seriousness of her misconduct as compared to the misconduct in Field and Murray. This use of independent review in a published case is consistent with the review department’s responsibility to develop a body of precedent on appropriate levels of discipline with due consideration to the discipline standards, the applicable statutes and rules of professional conduct, and comparable cases.

Nassar offers a practical starting point when considering whether to challenge a discipline recommendation. Carefully review similar cases, with special attention to aggravating and mitigating facts. Do not limit your review to cases relied on by the hearing department. When the misconduct is a type that rarely comes before the State Bar Court, you’ll have greater freedom to attempt to persuade the review department to your view on discipline. But, a note of caution, the State Bar will have the same freedom, and the review department might conclude more severe discipline is warranted.

More broadly, Nassar highlights the review department’s two points of focus. The narrow focus is the case immediately before it. The broader focus is its mandate to recommend discipline that protects the public, the courts, and the legal profession. Discipline challenges that can articulate a compelling case on both fronts are the ones most likely to succeed, even absent an error or abuse of discretion.

On Appeals is a monthly column by the attorneys of the California Appellate Law Group LLP, an appellate boutique with offices in San Francisco and Los Angeles. Jennifer Teaford is of counsel with the firm, and previously served as a senior attorney and then as Assistant Chief Court Counsel in the appellate division of the State Bar Court of California. Find out more about Jennifer and the California Appellate Law Group LLP at www.calapplaw.com.