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From the President

Critical changes afoot in attorney conduct rules

By James P. Fox
President, the State Bar of California

James FoxAs a lawyer in private practice in San Mateo in 1980, I was preparing to try what would wind up being my first and only death penalty case. The defendant was a man I had known for years, ever since he was an inmate in juvenile hall.

As the defense lawyer, I never doubted that I had full access to the evidence in the case. The jury deliberated whether to give the death penalty for 10 days. After two jurors were replaced due to illness – one of them having a nervous breakdown due to the stress – the jury gave my client a reprieve of a life sentence.

A few years later, I went on to become the elected district attorney in San Mateo County. During my service, at one point we had sought the death penalty 18 times and juries returned a death verdict 14 times and were unable to reach a verdict in the other four cases. We always turned over all the evidence we had to the defense. To me, it’s a question of basic fairness. The defense can only make an informed decision with the full facts.

But my earlier experience as a defense lawyer never left me. It helped form my views about the awesome power prosecutors have and the importance of using that power carefully.

It was with this in mind that I joined my colleagues on the State Bar Board of Trustees last month in endorsing a new Rule of Professional Conduct in California that applies only to prosecutors. Proposed Rule 5-110, which now goes to the California Supreme Court for final approval, is similar to American Bar Association Model Rule 3.8 and requires broad disclosure of evidence the prosecutor knows or should reasonably know would be helpful to the defense.

I was not the only criminal prosecutor on the State Bar Board of Trustees who supported this rule. Miriam Krinsky, a former federal prosecutor whose term as a trustee ended with the Oct. 1 board meeting where the rule was adopted, spoke about the need to heal the fractured bonds of trust in all parts of the justice system. She pointed out that the ethics rules are the moral compass for lawyers in our state and this rule is needed to make it clear that our system rejects a “win at all costs” mentality.

Terry Wiley, another outgoing board member who serves as prosecutor in Alameda County, spoke so eloquently about the long shadow of corruption that sullied the Alameda County District Attorney’s Office before the legendary Earl Warren arrived to clean up the office in the 1930s. Warren, who went on to become the governor of California and the chief justice of the U.S. Supreme Court, instilled a culture of high prosecutorial ethics that remains today.

Two other prosecutors on the board – Danette Meyers of Los Angeles and Brandon Stallings of Bakersfield – agreed that prosecutors should be held to a high standard. They preferred an alternate version of the rule, which they thought provided clearer guidance for prosecutors.

While I understand and share some of their concerns, I take comfort in knowing that the California Supreme Court has the final say in any discipline case, which will protect against unfair application of the rule.

I’d like to take this opportunity to thank Justice Lee Edmon of the 2nd District Court of Appeal, who chaired the the Rules Revision Commission which brought us the proposed rule.

This month, the commission will bring to the board for approval another 68 new and revised attorney ethics rules. As outgoing President David Pasternak has noted, these rules will have a profound effect on what attorneys do every day in service of their clients and the public. They involve fee arrangements, conflicts of interest and more.One proposed rule, for example, strengthens a rule against discrimination.

As I begin my year-long term as president, I feel fortunate that I and the incoming board will have the benefit of all the hard work the commission has put in for nearly two years. The commission has received feedback from the public and attorneys about the rule changes. We welcome further input as we evaluate these equally important proposals, which are on track for submission to the California Supreme Court by March 2017.