District attorneys do not protect prosecutors and victims from conflicts

Every year, large district attorney offices spend hundreds of thousands of dollars to help victims. Expenditures include victims' services offices, deputy district attorney time to recover restitution, and victim website operation and maintenance. This is a great service to victims and the community. But the interaction between prosecutors and victims raises ethics problems that are not being addressed.

Professional Rule of Conduct, Rule 5.1(b), makes supervising attorneys responsible for ethics compliance by the attorneys they supervise. This rule (which uses "law firm") applies to prosecutors because Rule 1.01(c) defines "law firm" to include prosecutors' offices. District attorneys and their supervising attorneys are responsible for providing prosecutors with the tools to act ethically. This role requires more than just defending prosecutors charged with ethics violations. The most important aspect is to prevent prosecutors from violating ethics rules in the first place. If there is a reasonable chance that conduct violates professional ethics, district attorneys should instruct their prosecutors on how to avoid that conduct. District attorneys are failing to protect their attorneys and victims from violations of Rule of Professional Conduct, Rule 4.3. This rule states that "[i]f the lawyer knows ... that the interests of the unrepresented person are in conflict with the interests of the client, the lawyer shall not give legal advice to that person. . ." 

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 that the prosecutor may think will weaken the case. At sentencing, a victim may want jail time, while the People recommend probation.

It is instructive to focus on one possible conflict. Large district attorney's offices handle hundreds or thousands of sexual assault cases a year. A common defense tactic is to issue a pretrial subpoena to the physician or psychiatrist of the victim. This may be in good faith to develop defenses. It may be in bad faith to intimidate the victim.

Evidence Code sections 994 (physician-patient) and 1014 (psychiatrist-patient) establish that these records are privileged. Because of their heavy workload, one cannot expect every prosecutor to know that the California Supreme Court "decline[d] to extend the defendant's Sixth Amendment rights of confrontation and cross-examination to authorize pretrial disclosure of privileged information." People v. Hammon (1997) 15 Cal.4th 1117, 1128 (psychiatric records). "Under Hammon, psychiatric material is generally undiscoverable prior to trial." People v. Gurule (2002) 28 Cal.4th 557, 592 (cleaned).

Prosecutors know that failure to provide discovery in criminal cases may cause the case to be lost. The prosecutor may want the victim to provide all the requested records. On the other hand, victims prefer not to disclose intimate records to the attorney for their attacker, regardless of their knowledge of the law. It is in the People's interest to protect their case by allowing the defense to get the records it requested. It is against the interest of a victim. Because the interests of the prosecution and the victim may conflict when there is a subpoena directed to records about victim health care, prosecutors are forbidden from giving any advice, direct or indirect, to victims about the subpoena.

In a hypothetical case with assault charges pending, the defense issues a pre-trial subpoena for the doctors' records of the victim. The victim does not have counsel. The victim is upset and asks the prosecutor about it. The prosecutor responds: "[t]hese are common subpoenas in assault cases. We have a strong case. It will not hurt the case for the defense to get these records. Under these circumstances, we will not resist the subpoena." This statement provides helpful information about how common the tactic is and the strength of the case. It reflects a prudent saving of prosecutorial resources by not wasting time on an unnecessary motion. While the statement is paved with good intentions, the use of "we" means the prosecutor is giving legal advice to an unrepresented person. The victim will understand that she should do nothing about the subpoena. This is legal advice to unrepresented person when there is a conflict. It is a violation of Rule 4.3. Because of the advice, the victim may waive her privilege to keep years of psychiatric notes from the attorney for the defendant. While the prosecutor may not be responsible for the waiver, the failure to disclose the conflict has a harsh impact on the victim. This harsh impact makes it more likely that, if the victim discovers she could have stopped the subpoena, she will file a complaint against the prosecutor.

While it is correct that Rule 4.3 does not require prosecutors to tell victims about their right to counsel, failure to do so puts prosecutors at risk for violations of Rule 4.3. The danger Rule 4.3 identifies is giving advice when there is a conflict. It is risky to believe prosecutors will remember Rule 4.3 in the heat of the moment. This is particularly true in view of their large case load.

District attorneys concerned about Rule 4.3 should require that prosecutors give victims a letter stating that the district attorney does not represent them and that victims may retain their own counsel. This would protect prosecutors and benefit victims.