An easier route to disqualification of prosecutors

Recusal (disqualification) of a prosecutor’s office requires clear and convincing evidence of intentional withholding of exculpatory information or evidence. Another route is to prove a likelihood of unfair treatment. Both approaches are difficult and rarely successful. The 2018 Rules of Professional Conduct open another avenue to recusal, which is easier. The Rules require prosecutors to provide written notice to crime victims under certain circumstances. This is usually not done. Under the Rules, when there is failure to comply, the entire prosecutor’s office must be recused.

Rule of Professional Conduct 1.18(a) provides that “[a] person who … consults a lawyer for the purpose of … securing … advice from the lawyer in the lawyer’s professional capacity, is a prospective client.” Victims who ask a prosecutor about court proceedings, strategy, or discovery are prospective clients. To be a prospective client, one must have a good faith intention to seek legal advice. Comment 2 to Rule 1.18. Including crime victims within the scope of Rule 1.18(a) is not dependent on a victim’s belief that the prosecutor represents them.

Nevertheless, it is common for victims to believe that prosecutors represent them. Prosecutors help victims, guide them through the criminal legal system, advise them and act against the person who hurt them. Victims may assume since they are simply one of the People in the case caption, they must be represented by prosecutors.

Rule 1.18(b) explains that it applies even when the lawyer never forms an attorney client relationship with the prospective client. Rule 1.18(c) provides the standards for lawyers who give legal advice to a prospective client in a matter in which they have a current client. Since victims qualify as prospective clients, Rule 1.18(c) applies to prosecutors. It has four criteria. First, whether the interests of the client (the People) and the prospective client (the victim) are “materially adverse.” Second, does the information from the prospective client pertain to the same matter (or a substantially related matter) as the lawyer’s current representation of his client. Third, whether the lawyer received confidential information (as defined in Business and Professions Code section 6068(e)(1)) from the prospective client. Fourth, whether the information received from the prospective client is material to the case.

The first requirement of Rule 1.18(c) is that the client (the People) and the prospective client (victim) have “materially adverse” interests in the same matter. American Bar Association Formal Opinion 497 (Feb. 10, 2021; section II, first paragraph) explains that “’material adverseness’ includes, but is not limited to, matters where the lawyer is directly adverse on the same or a substantially related matter.” The second prong is met because crime victims and the People are both involved in the same criminal case.

As to the first prong, the ABA defines “materially adverse” as “directly adverse.” Comment 1 to Rule of Professional Conduct 1.7 explains “directly adverse.” “A directly adverse conflict under paragraph (a) can arise in a number of ways, for example, when: (i) a lawyer accepts representation of more than one client in a matter in which the interests of the clients actually conflict …” The test for material adversity is whether there are conflicts of interest between the victim and the People.

Conflicts between the People and victims are common. There are possible serious conflicts at virtually every stage of a criminal case. At the charging stage, a crime victim may want more serious charges (with longer possible incarceration) than the People choose. At the preliminary hearing, a victim may not want to testify, but the prosecutor may insist on that testimony. At the discovery stage in an abuse case the People may want the victim to provide all the medical records the defense has subpoenaed, but the victim may want to protect their privacy and only produce some records. At trial, a victim may want to testify about events which the prosecutor may think will weaken the case. At sentencing, a victim may want jail time, while the People recommend probation.

These conflicts involve the duty of loyalty. “[W]hen the potentially conflicting parties are simultaneously represented by the same attorney, [t]he primary value at stake ... is the attorney’s duty – and the client’s legitimate expectation—of loyalty …” Metro-Goldwyn-Mayer, Inc. v. Tracinda Corp. (1995) 36 Cal.App.4th 1832, 1839. “An attorney’s duty of loyalty to a client is not one that is capable of being divided . . .” Great Lakes Construction, Inc. v. Burman (2010) 186 Cal.App.4th 1347, 1355. There are often serious conflicts between the interests of prosecutors and victims which rise to the level of materially adverse.

Applying the third criteria of Rule 1.18(c), victims frequently share confidential information with prosecutors about the crime. For example, a victim may disclose that she was hiding in the closet when her father was shot in the living room. (A family member is also a crime victim, Cal. Const. Art I, section 28(e)). At the time of disclosure, this information is not public, is not known to the court and is not known to the defense. This disclosure is a secret under Business and Professions Code section 6068(e)(1).

Continuing the example of the victim who hid in the closet and heard the crime, the information provided to the prosecutor is material to the case. It is common for victims to share important information about a case with prosecutors. This is the fourth and final criterion of Rule 1.18(c).

Once the four criteria have been met, Rule 1.18(d)(2)(ii) requires written notice to the victim so the victim can determine if the prosecutor has complied with Rule 1.18. Rule 1.18 (d)(2)(i) requires that the individual prosecutor must stop his or her participation in the case. Neither of these two steps are commonly taken by prosecutors. Failing to provide written notice leads to a serious consequence. The entire prosecutor’s office must withdraw. Section 1.18(c) states that the required resignation applies to the entire “law firm.” As defined in Rule 1.01(c), the “law firm” is the prosecutor’s office (such as the county district attorney). The continued representation of the People by the district attorney is a violation of 1.18(c). Both the individual prosecutor and the district attorney’s office will have violated the Rules of Professional Conduct. This is consistent with Rule 5.1. That rule requires supervising attorneys, such as district attorneys, to ensure that attorneys in their office comply with the Rules of Professional Conduct. The failure to institute office wide compliance can result in office wide disqualification.

There is no exclusion in Rule 1.18 for prosecutors. There is nothing in the three comments to the Rule excluding prosecutors from its reach. Rule 1.0(a) is clear that the Rules apply to all lawyers. Since prosecutors are within the reach of the rule, the next issue is whether there are any defenses against application of Rule 1.18. One possible defense is that no reasonable person could believe a prosecutor represents them. After all, prosecutors are employees of a county or city and do not take other clients. Therefore, since no crime victim could have a reasonable belief that a prosecutor might represent them, the victim is not a prospective client and there is no violation of Rule 1.18.

There are three answers to this position. First, the Rule does not include a reasonable belief in the representation requirement. Rule 1.18 is based on the content of communications between the prospective client and the lawyer. The requirement that a victim have a reasonable expectation of representation is not in the Rule. Comment 2 explains that prospective clients only need a reasonable expectation that the lawyer will provide legal advice. Comment 2 also explains that the Rule may not apply to unilateral communication, such as when a prospective client approaches a lawyer and starts divulging information. But victims and prosecutors have two-way communication during which the prosecutors elicit information. Bilateral communication is another indication that the Rule applies. Neither the text of the Rule nor the Comments support a defense against the application of Rule 1.18 based on a lack of an objectively reasonable expectation of representation. This makes sense because the focus of the Rule is on communication of information which may be inappropriately used.

Second, the average person does not know whether a prosecutor can take other clients. Some prosecutors work part time and can and do represent private clients. A crime victim cannot be expected to know whether a prosecutor takes private clients or not. A victim could have a reasonable expectation of representation. Prosecutors who wish to rely on their unavailability to represent victims as a defense to Rule 1.18 must communicate that when the prosecutor and victim first meet. Once the victim shares confidential information it is too late.

The third reason a reasonable belief standard would not matter lies in the relationship between prosecutors and victims. Prosecutors advise victims on substantive law (what must be proved for there to be a conviction) and procedural law (the timing and relative importance of hearings). Prosecutors act against the person who harmed the victim. Prosecutors often help victims recover their losses (restitution). Victims confide in prosecutors. The victim/prosecutor relationship has the hallmarks of an attorney-client relationship: legal advice, legal action against the person who caused the harm, recovery of losses and confidential communication. A crime victim could have a reasonable belief that the prosecutor represents them because of these hallmarks.

Another possible defense against the application of Rule 1.18 to prosecutors is that defendants do not have the right (standing) to disqualify prosecutors based on the prosecutor’s ethical mistake as to a victim. Penal Code section 1424 (a)(1) provides that defendants may move “to disqualify a district attorney from performing an authorized duty.” This section establishes standing under California criminal procedure.

There is a second independent basis for a defendant’s standing to disqualify a prosecutor for unethical behavior. Hassett v. Olson (2022) 78 Cal.App.5th 866, addressed whether a party who was neither the client nor the former client had standing to move to disqualify counsel for a violation of a Rule of Professional Conduct. Both standing and disqualification were affirmed. The Court explained: “[i]t makes no sense for a court to stand idly by and permit conflicted counsel to participate in a case merely because neither a client nor former client [nor party to a former proceeding] has brought a motion. [T]he court has an independent interest in ensuring trials are conducted within ethical standards of the profession and that legal proceedings appear fair to all that observe them.” Id at 873.

Penal Code section 1424 provides the procedure for recusal of prosecutors. It specifies the motion timing and service. These requirements could apply to motions under Rule of Professional Conduct 1.18. Section 1424 also has standards for recusal. One question is whether section 1424 is the exclusive means of recusal, a third possible defense against the application of Rule 1.18 to prosecutors. Subsection (a)(1) provides “[t]he motion may not be granted unless the evidence shows that a conflict of interest exists that would render it unlikely that the defendant would receive a fair trial.” This text may be read two ways. First, that it summarizes the basis for recusal under the substantive standard in section 1424. The second possible reading is that section 1424 is the exclusive standard for prosecutor recusal. Under the latter interpretation, Rule 1.18 would not apply to prosecutors.

One problem with the second interpretation is that Rule 1.0(a) states that the Rules of Professional Conduct apply to all lawyers. This means that the failure of prosecutors to comply with a Rule of Professional Conduct provides a second route to disqualification of prosecutors. This might be a conflict between the second interpretation of section 1424(a)(1) and the Rules of Professional Conduct.

Application of the rules of statutory interpretation avoids the conflict. “[W]e must reconcile statutes and seek to avoid interpretations which would require us to ignore one statute or the other . . .” Fuentes v. Workers’ Comp. Appeals Bd. (1976) 16 Cal.3d 1, 7. Fuentes requires that reconciliation be tried when two rules of law appear to conflict. This can readily be done. The Rules of Professional Conduct add a new basis for disqualification of prosecutors. That interpretation does not annul section 1424, continues its basis for disqualification and allows use of its motion procedures.

This approach is also consistent with the presumption that when new rules or laws are passed, the body enacting them is aware of the existing laws. “[W]e must assume that when passing a statute the Legislature is aware of existing related laws and intends to maintain a consistent body of rules.” Id. When the California Supreme Court approved the Rules of Professional conduct in 2018, it was aware of existing laws, such as Penal Code section 1424 – which went into effect in 1980. Lack of standing is not an effective defense to the application of Rule 1.18 to prosecutors.

A key problem for prosecutors is their failure to give written notice to victims under Rule 1.18(d)(ii). This is similar to another serious omission by prosecutors. For more than a dozen years most prosecutors have violated the requirement that they give written notice to victims of their right to counsel. Penal Code section 679.026(b) states: “[e]very victim of crime has the right to receive without cost or charge a list of the rights of victims of crime recognized in Section 28 of Article I of the California Constitution.” The victim’s right to counsel is in Section 28(c)(1). The reference to “list” means that the information must be in writing. Penal Code 679.026(c)(1) specifies that prosecutors must communicate this right to victims. This is generally not done.

There is a simple solution to both problems. At their first meeting, prosecutors could give victims a short letter explaining that the victim has a right to counsel and that the prosecutor does not represent them. This would comply with the Penal Code and prevent a Rule 1.18 problem by ensuring that the victim knows they are not a prospective client. Until prosecutors implement this simple solution, their office is fair game for motions to recuse.

There are important differences between recusal under Penal Code section 1424 and Rule of Professional Conduct 1.18. Under the Penal Code, the bar is very high. “[A] defendant has the burden of showing by evidence that (1) a conflict of interest actually exists and (2) the level of conflict is so high that it is unlikely that the defendant would receive a fair trial.” People v. Pierce (2019) 38 Cal.App.5th 321, 342. While Rule 1.18 has its own criteria, once they are met disqualification of the entire prosecutor’s office is required, without regard to whether the trial may be fair.

A second point is that the standards of section 1424 rely more heavily upon the discretion of the trial court. In contrast, a critical element of Rule 1.18 is whether a written notice was provided to the victim. That is a black and white matter.

A third point of difference, and most important, is that facts supporting recusal under the standards of section 1424 are very rare. But facts supporting recusal under Rule 1.18 are not only common, but probably predominant in cases with victims.

When disqualification of a district attorney’s office is ordered, the case is referred to the Attorney General. The Attorney General may or may not take the case. The Attorney General may also drop certain charges or defendants. From the defense standpoint, a successful disqualification of an entire district attorney’s office is a significant win and can lead to dismissal of the case. The Rules of Professional Conduct open another avenue to this powerful strategy.